Avoiding Getting Caught Up in a Law Firm’s Protocols – II

In my last post entitled Avoiding Getting Caught Up in a Law Firm’s Protocols, I discussed how getting caught up in a law firm’s protocols on approaching even the smallest of matters often leads to overbilling and more importantly, overlooking any real opportunities to quickly and efficiently resolve a matter for a client. To avoid getting caught up in a law firm’s standard protocols on how they approach most all legal matters, I ended my prior post with three important steps to take. In this post I will discuss each one of those steps.

Agreement on the Objective

Before even approaching a lawyer to take on a matter, a client needs to as narrowly as possible focus in on what is the objective of the representation. This may sound sound simple enough to do. But I have seen individuals and even corporate clients approach a lawyer with a laundry list of things they want done that reads more like the “tactics” or the specific steps they want the lawyer to take rather than the “objective.”

Assuming you do have a very definite idea of what you want done or what should be the objective of the representation, then according to ABA Model Rules of Prof. Conduct (RPC) 1.2(a), the lawyer is then bound to “abide by the client’s decision concerning the objectives of the representation.” However, note that does not necessarily mean that the lawyer has to take on the representation – especially if what the client wants done (i.e., the objective) is unreasonable, illegal, unfeasible, or unethical or he just plain doesn’t want to take on the representation.

Agreement on Steps to be Taken

After agreeing on the objective of the representation, the next step to take is to agree on what is going to be done to successfully meet the objective.

Ordinarily, lawyers view deciding on a plan of action or the tactics or the means to take to meet the objective as something that they should decide. But RPC 1.2 provides that lawyers should “consult with the client as to the means by which “they are going to “carry out the representation” and should “defer to the client regarding such questions as to the expense to be incurred.” Thus, the client should have a definite say in the means especially as they relate to expense.

Note that more often than not, there may be different ways to successfully meet a client’s objective in a matter. And a good attorney will let the client know what all the options that may be available to meet the objective – especially those options that may involve less time and less cost. In fact, an attorney has an ethical obligation to do this. See ABA Annotated Model Rules of Professional Conduct (6th ed. 2007) at p. 63 “Duty to Explain Law and Benefits and Risks of Alternative Courses of Action”. If your lawyer forgets to discharge this mandatory ethical duty, you should be prepared to ask about all alternative courses of action (and get the lawyer’s answer on this point in writing).

Whatever is finally agree upon should be set out in a written plan of action that the lawyer intends to employ to follow to meet the client’s objective. The plan should not only set out what is going to be done and when, but also who is going to do what. This latter point ties in with the third step a client needs to take, getting agreement on the staff to be used.

Agreement on Staff to Be Used

After setting out the objective and the means to achieve the objective, the next step is to agree upon what staff will be used. And if it is not possible to identify specific firm staff members who will work on the matter, it is important to at least identify the level of law firm staff that will do the work.

Except in very small law firms, a law firm staff usually consists of partners, associates, paralegals, and non-billing legal assistants or secretaries. And since associates charge less than partners and paralegals charge less than associates and legal assistants or secretaries do not charge at all, it is important when going over the agreed to plan of action to drive work down to lower billing or non-billing staff wherever possible. For example, if subpoenas are to be sent out, they should be prepared and sent out by paralegals. Or if a large amount of documents need to be reviewed, this should be done by lower billing associates (or even paralegals). Even minor court hearings can be handled by lower billing associates. The point is to go over each step in the plan of action and get agreement on what level of staff is going to be utilized with an eye toward driving down the work wherever possible to lower billing or even non-billing staff..

Changing What Was Agreed To

Finally, it should be noted that as a legal matter unfolds, the plan of action may need to be changed. Sometimes it may be that even the objective(s) need to be changed. If so, rather than abandoning completely what was previously agreed to, this process to get to agreement on a revised plan of action will need to be repeated.

The above is not to say that there are many other things that can be done to save on costs as well as help ensure a favorable outcome sooner rather than later to avoid getting caught up in a law firm’s protocols. But the most important things that can be done are those things that are done up front. These things include agreeing upon the objective of the representation, agreement on the steps to be taken to achieve the objective, and agreeing on the staff to be utilized.

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