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Selecting the right employment law representation can be a trial.
It may not be the first word that comes to mind when thinking about lawyers, but
trust is what matters when choosing the right employment law attorney. “It’s a personal relationship, and sometimes you just have to trust your instincts,” says Nancy McKeague, SHRM-SCP, senior vice president and chief human resources officer at Michigan Health & Hospital Association in Lansing, Mich.
Whether you’re seeking outside counsel for the first time or looking to make a change from your current representation, there are many options to consider. For instance, some HR professionals nurture relationships with larger law firms, figuring that attorneys with various specializations will be needed to handle different issues.
“I find that working with a large firm that has a variety of specialists is an invaluable resource,” says Ellen Eisenberg, vice president at United Sortation Solutions in Owings Mills, Md., which provides equipment to move products within a manufacturing environment.
“We have a main employment law contact at our firm,” she says. “However, if a question arises that he feels his colleagues may be more knowledgeable or experienced with, he reaches out to [them] on my behalf.”
Others prefer to rely on one trusted partner to meet all their needs. “The outside counsel I use is someone I trust and respect,” McKeague notes. “He is willing to discuss options and alternatives, but is decisive. I used to spread the work among a few firms but now use him almost exclusively.”
How do you know when the time is right to change your representation?
“If you are even wondering if you have a good attorney-client relationship, it may be more likely than not that you don’t,” says Christine Walters, J.D., SHRM-SCP, sole proprietor with HR consultancy
FiveL Co. in Westminster, Md.
Indeed, regardless of whether your arrangement is with a legal team or a single attorney, experts say that a desire to keep your representation at arm’s length may be a sign that it’s time for a change. “A client who is reluctant to seek counsel from their attorney is the No. 1 sign of a bad relationship,” says W. Andrew Douglass, an attorney with Polsinelli in Chicago. This may happen because the client believes the attorney does not fully understand the business, Douglass says, or because the client thinks the lawyer only recognizes roadblocks without offering viable solutions. “In any case, a lack of trust is telling evidence that the relationship has broken down,” he says.
“Clients sometimes perceive that attorneys are more interested in billing hours than solving problems efficiently, and such a perception can quickly erode trust,” says James McDonald, an attorney with Fisher & Phillips in Irvine, Calif.
If you’ve decided the time has come to make a change, you have a number of options. A transition to different representation within the same firm on a case-by-case basis is one possibility. “It’s a rare lawyer who has the breadth to address all of a client’s employment issues,” notes David Garland, an attorney with Epstein Becker Green in New York City and Newark, N.J. “For example, is someone needed to assist in an investigation being conducted by an agency where experience with the agency or particular investigator would be helpful?” he asks. “In order to respond to a lawsuit, would it be helpful to retain a litigator who has had experience with the employee’s lawyer or the particular court where the case has been brought? These are important questions to ask.”
Once the decision is made to switch firms, it’s smart to give the new firm a case or two to test their service before making a commitment, recommends Douglas Gilbert, an attorney with Fasken Martineau in Toronto.
“I tell prospective clients that if they’re 100 percent satisfied with their current lawyer’s rate, efficiency, responsiveness and results, they shouldn’t consider a change,” says Ron Chapman Jr., an attorney with Ogletree Deakins in Dallas. “But if there is room for improvement in any one of those categories, there is a better fit out there.”
When seeking out a new attorney, Walters suggests getting references from other HR professionals. “Shop—compare rates and resources,” she says.
Want your attorney to understand your culture? Ask him or her to drop by.
“I always try to visit a new client in person, and I ask for a tour of their facility,” McDonald says. “No client has ever turned me down; in fact, they are flattered that I am interested. I find these tours to be very useful toward learning the company’s culture, the state of its employee relations, the business challenges [it faces] and how [it makes] money.”
The employment attorney should demonstrate that he or she understands the company’s employee relations philosophy, says Jennifer Youpa, an attorney with Littler in Dallas. For example, one company wanted her to prepare an arbitration agreement to be signed by employees but didn’t want it to be perceived negatively. So Youpa created a voluntary agreement that included an incentive for signing: entry into a raffle for a motorcycle.
Occasionally, the lawyer may even have more knowledge than HR does about an employer’s culture, such as if the attorney has been with the company longer than the HR professionals. In such circumstances, the attorney can help educate the department, notes David Rogers, an attorney with McDermott Will & Emery in Washington, D.C.
Attorneys should be practiced in the art of persuasion but diplomatic enough to deliver difficult messages gently. “A good lawyer will listen to the client’s objectives, however unrealistic or at times destructive,” Gilbert says. “No one wants to be told they are wrong or out of touch with reality.” It may take a while for an attorney to convince a client that it’s time to change tactics. “Sometimes the client needs to see for themselves how their preferred strategy works with opposing counsel, a judge, a regulator or a trade union before adapting to a more effective one.”
But that doesn’t mean lawyers should hold back when giving input. “When you provide advice the client does not want to hear, you should make it clear that you understand how they feel or how they are reacting. But you would not be doing your job, and would not be properly advising your client, if you did not tell them all that is applicable—the good and the bad—to their particular situation,” adds Lynn Outwater, an attorney with Jackson Lewis in Pittsburgh.
Attorneys often find themselves in the position of giving advice HR may not want to hear when the company is dealing with chronically absent employees, says Richard Marca, an attorney with Gresham Savage in Riverside, Calif. Employers must navigate through a complex maze of laws and regulations, including the Family and Medical Leave Act, the Americans with Disabilities Act, and workers’ compensation rules.
Sensitivity to risk tolerance is another trait to look for in an attorney. Walters says a good lawyer will “develop options for getting where you want to be with varying and associated levels of risk. Then HR and the leadership team can choose the action that is the best match for their goal and risk tolerance.”
Some Hallmarks of a Good Attorney
Employment law attorneys and HR professionals cite the following characteristics of a good lawyer:
That said, “a lawyer needs to be thoughtful in conveying risk,” says Jonathan Segal, an attorney with Duane Morris in Philadelphia. “There is a big difference between illegal and legal risk. Firing an employee because she is pregnant is illegal. Firing a poor performer who is pregnant involves legal risk. Lawyers cannot help clients engage in illegal activity. Lawyers can and should help clients mitigate legal risk.”
It’s also important for an attorney to take note of what HR is not saying, notes Debbie Hoffman, an attorney with Mayer Brown in Chicago.
“A good employment lawyer will do a lot of active listening, asking good questions and drawing out from his client not just all of the relevant facts underlying the legal issue but all of the context and circumstances relevant to solving the problem,” remarks David Barmak, an attorney with Mintz Levin in Washington, D.C. The full picture, he explains, might include concerns over setting a precedent or satisfying various stakeholders who may not have fully aligned interests or expectations.
Segal has this advice: “Talk upfront about what you expect from each other and evaluate it periodically. This is a critical relationship, so a good lawyer will ask, ‘How can we do better?’ And a good HR professional will ask the same.”
Finally, HR shouldn’t have to pay for the time it spends establishing trust. “The dialogue can be incredibly productive, unless the lawyer charges for it; then find a new lawyer,” Segal says.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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SHRM webpage: SHRM Online Legal Issues home page
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