Author: Daniel A. Lublin
No such thing as a “free” consultation
“Lawyers are the only persons in whom ignorance of the law is not punished.” – Jeremy Bentham (1748 – 1832)
How do you win in court? It starts with selecting the proper lawyer. But with countless factors to consider, finding the ideal lawyer to navigate your case is a difficult, if not overwhelming, task. Here are three cautionary tales that I’ve gleaned from the employment law trenches:
Advertising: A lawyer’s search engine rankings have nothing do with his or her legal skill. Rather, Internet-based advertising allows lawyers to pay for and then snatch up high rankings on Google and Yahoo that are not indicative of the quality of the lawyer, her firm, or the actual number of visitors to the website. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practise it, on their websites and in the media, and they do. For instance, Toronto’s Yellow Pages has ads for 32 lawyers who practice ‘wrongful dismissal.’ However, many of those same lawyers appeared when I searched for ‘family lawyers,’ which wasn’t surprising at all. The reality is that there are few exclusively practicing employment lawyers. Most just dabble in the area, despite advertising otherwise. But employment law is specialized. Success in a workplace lawsuit requires a comprehensive understanding of relevant law and a battle-tested background. Inquire what percentage of the lawyer’s time is spent solely on employment law matters – and don’t pay for his or her education.
Free consultations: Some lawyers advertise “free” consultations. These can be a sham. A free consultation is their opportunity to assess whether they want to take your case but not your opportunity to learn about the risks and costs of proceeding with one. You then pay for that advice afterwards, so really, your consultation wasn’t “free” at all. I recently consulted with a client who came to me seeking a second opinion following a complimentary session with another lawyer. Their meeting lasted 20 minutes, during which the other lawyer opined that the case was a good one and then had the client pay $1,500 so he could review the file and write a demand letter. There was one problem. The employment contract that the client had signed had all but disposed of the case. The other lawyer hadn’t bothered to discuss the contract as a potential problem during their initial meeting (something that most employment lawyers should spot as a matter of course). By the time the lawyer later discovered the issue, the client had been billed twice the standard fee that most counsel generally charge for an initial meeting. In other words, this client’s “free” consultation had become something much different. And his admonitory tale is, unfortunately, not an unusual one.
Oral agreements: The biggest problem that most people face with lawyers is their billing practices. This is because the regulatory bodies that oversee lawyers have few restrictions governing how they charge for their work. As a result, most lawyers are left to their own devices. However, one common agreement they use, an oral contract, isn’t much of an agreement at all. Here, lawyers bill ad hoc, based on any combination of the time they spend on the file or the results obtained. Where the file requires more work than anticipated, the client pays for the lawyer’s time, regardless of the result. But where there is a quick settlement, the client is billed based on percentage without regard to the lawyer’s effort. In effect, the lawyer has it both ways. If asked, a lawyer should predict to the best of his or her ability the potential costs of your case. Then confirm that arrangement in writing.