The Importance of Agreeing On Legal Staff To Be Used

In the introduction to The Art Of Hiring The Right Lawyer & Negotiating A Fee Agreement That Will Save On Legal Costs, I note that the book was written especially for small business or individual clients of lawyers. As I point out, these types of clients typically do not have the leverage that large corporations have with lawyers to alter a fee agreement to their advantage. But, that does not mean that these smaller clients of lawyers do not have some rights including insisting that certain language be included (or excluded) in any fee agreement. And if the language is not included (or excluded), they most definitely should look for another lawyer. The following is an excerpt from Chapter 2, Agreeing On The Objective, A Course of Action, Staffing, and Costs. Agreement on Staff to Be Used One final thing from a legal cost-saving standpoint to discuss with the attorney before actually hiring the attorney and entering into a fee agreement is how the matter will be staffed. With regard to staffing, depending upon the size of the law firm, a law firm’s staff can consist of billing staff such as partners, associates, and paralegals, and non-billing staff such as legal assistants, clerks, and secretaries. If it is a simple, non-complex matter, it may only require the services of one attorney. But, often at the outset of a representation, it may not be possible for the lawyer in charge to know if other law firm staff members will work on the matter or be able to identify specific law firm staff members who will work on the matter. And that is okay so long as the lawyer at least identifies the level of law firm staff that may be needed to work on the matter. For example, if the lawyer is a partner and needs assistance from another firm attorney to handle the client’s matter, that assistance usually should come from a lower billing associate and not from another partner. But if the partner insists that she needs to be assisted by another partner, a question then arises as to whether she really has the expertise needed to sufficiently handle the matter—especially if it is not that complicated or complex of a matter. In any event, the attorney needs to explain why she needs assistance from another partner as opposed to a lower-billing associate attorney. If the partner is to be assisted by an associate and the law firm is large and has multiple levels of associates, the question then becomes whether a very experienced (and higher-billing) associate or a less experienced (and lower-billing) associate is needed to adequately handle the necessary associate-level work. If the partner states that he needs to be assisted by a more experienced (and higher-billing) associate, the partner should be asked to set out the reasons why this is necessary. Remember, if the main attorney is the subject matter expert he claims to be, does he really need to be assisted by someone who may be another subject matter expert? But even if the partner can demonstrate the need to utilize a more experienced associate, it is important to note that the partner still would have a duty to drive work down to lower billing or non-billing staff wherever possible. For example, there are things that lower-level associates can do that do not require a higher-level associate (for example, basic research). In Chapter 6, I recommend some language to be included in the attorney fee agreement on this point when I discuss hourly billing rates for staff. Two other important things to consider about law firm staffing. One is to be wary of the proposed use of any lawyer who has the “of counsel” designation. This is because of counsels are not associates. They may, in fact, be semi-retired partners who still bill at the partner rate. This is okay if what is needed is a senior-level attorney. At the other end of the spectrum are those of counsels who are just starting out or are trying to work their way into the firm. They are usually billed at an associate-level hourly billing rate. The other important thing to consider about law firm staffing is that if the attorney hired is in a small firm that does not employ paralegals or non-billing legal assistants, chances are that the law firm cannot cost-effectively handle the matter. If a law firm does not employ paralegals, for example, this usually means that the attorneys will be handling tasks that could otherwise be handled by lower-billing paralegals. And if the firm does employ paralegals, but no non-billing legal assistants or secretaries, chances are that the paralegals will be billing for tasks that could otherwise have been done by non-billing legal assistants or legal secretaries. So, as a general rule, it is almost always going to be more cost-effective to hire a lawyer in a law firm (whether large or small) that employs both paralegals and non-billing legal assistants or legal secretaries.

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