At some time during the course of your business as an independent sales representative, you are likely to be faced with the necessity of engaging an attorney to represent your interests. It is recommended that you interview at least two to three attorneys prior to retaining counsel. To facilitate this exercise and make it seem somewhat less daunting, there are some basic tenets that anyone conducting such engagement process should follow. Consider the following four exercises.
Experience
Do: Sales representatives should search for counsel experienced in the particular matter in hand. MANA is an ideal source for such experienced counsel. MANA has available for its members on its website a list of member attorneys who understand the sales representative business and the laws pertaining thereto. Not only have these attorneys built their practice on counseling sales representatives, but they have agreed to allocate some of their time for a cost-free initial interview, to discuss the general problem in an effort to mutually determine whether there is an appropriate fit between you and this attorney’s practice. If not, the attorney will likely refer you to other qualified counsel.
Don’t: Do not seek counsel by browsing through the yellow pages, billboard advertisements or by engaging counsel that may not be familiar with the specific business of sales representatives.
Evaluate Your Options — What to Ask
Do: Ask that a conflict check be performed before you disclose information that may be confidential. This will avoid engaging counsel to represent you in negotiations or a lawsuit on a contract with a principal which is also represented by that firm.
Don’t: Seek advice from an attorney representing the other side of the issue. That attorney is bound to zealously represent the other party — not you. If the other side has counsel, that should be a red light that you should as well.
Do: Determine whether or not the attorney being interviewed by you is qualified and competent to work in the jurisdiction where the matter will be litigated or heard. Most states have specific laws regulating the business of the sales representative. It is important to determine whether the attorney is qualified, or can become qualified, to represent the sales representative in the state(s) where your case might be litigated. If the matter is litigated, there is a procedure through which an attorney in another state may become qualified in the state of litigation (pro hoc vice), but even this arrangement often requires that local counsel be engaged, even though it may just be nominally. Such local counsel for litigation matters should be familiar with the state laws, local court rules, the court and its personnel, and the system itself.
Don’t: Don’t assume that any counsel licensed in a state where the issue is pending is de facto adequately qualified to represent you. An attorney without intimate knowledge of your industry is so far behind the curve that it is most likely impossible to catch up in the period that the attorney will be representing you. If the choice is between a less expensive attorney without industry experience and a more expensive attorney who is familiar with sales representative issues, the more expensive counsel may result in an overall lesser fee because you don’t have to pay for him/her to become educated.
Do: Determine the accessibility and availability of counsel under consideration. It is not unreasonable to expect that calls and e-mails be returned promptly. Inquire whether or not there is a legal assistant or other counsel in the office that would be familiar with the sales representative’s matter that can address the sales representative’s immediate concerns. Also, making a list of issues/concerns and calling counsel less often but with an organized list of several issues to discuss, will result in lower hourly charges.
Don’t: Don’t believe that busy attorneys who don’t have time to listen and fully understand your issues must be qualified simply because they appear to be busy. If the attorney is too busy to return your calls or e-mails or take the time to listen to your problem, find other counsel.
Do: Ask what to expect in regard to costs and fees. There are many types of fee arrangements, the most common of which are hourly rates and contingency fee agreements. Assure yourself that the rates are reasonable in comparison to other rates in the community and that the attorney’s office is structured such that the level of service required will be performed by those qualified (not overqualified) to perform the service (e.g., it is not desirable to have an attorney charging a lawyer’s hourly rate to do work that an associate or paralegal can do at lesser rates). Contingency arrangements vary greatly, but typically are between 30–40 percent of the eventual recovery at trial. Consideration should be given to whether or not the costs come out of the client’s portion of the recovery. The experienced attorney could give you a ballpark range of what to expect based upon similar past engagements. Often, it is recommended that you have separate counsel review a contingent fee contract.
Don’t: Don’t focus solely on the hourly rate itself because it may be that the experienced attorney providing the service at a high hourly rate can perform the same service much more effectively and efficiently than can another attorney that has a lower rate, but is less experienced. Also, if the attorney does give you a ballpark estimate or range of expected costs and expenses, don’t expect that to be set in stone. Every case is different and time spent on a matter depends, in large part, on how the opposing party responds during the representation, which is impossible to predict with certainty.
Engaging the Attorney
Do: Read and understand the terms of your contract with your attorney. If the terms of this contract at first glance appear to be too one-sided or unfair, discuss such with the attorney. Make sure that you have an exit path in the event that things with this particular attorney don’t work out. Most attorney-client engagements are subject to termination by notice of either party. In the event of termination before the matter has reached final resolution, the hourly rate attorney will expect payment for fees and costs incurred up to the time of termination. The contingent-fee attorney will expect something in exchange for time and costs in the event of early termination and may have a lien on your lawsuit. This should be explained and accepted by you before signing the contract retaining counsel.
Don’t: Don’t sign the attorney-client agreement if you have not read it, don’t understand it or the attorney cannot give a reasonable explanation for terms that you feel are unevenly balanced.
Go With Your Gut
Do: After having considered the pro’s and con’s of each attorney being considered, (but not until then), you should consider an additional factor — your gut feeling. Give it weight in your evaluation. If a particular attorney “just doesn’t feel right,” take that into account. The attorney client relationship is a personal one and if something is intuitively pointing you in a different direction, there probably is a reason, even though it may not be objectively obvious at the time.
Don’t: Don’t simply draw straws, cast dice or only “go with your gut” and engage counsel if none of the other factors mentioned in this article favor that particular attorney. You will second guess yourself later.
If you follow this list of do’s and don’ts when embarking on the path of hiring an attorney to represent your sales representative firm, it should ensure that you don’t have buyer’s remorse when the representation has concluded.
