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If you’re considering switching attorneys, make sure it’s for the right reasons.
As an attorney, I am surprised by the number of HR executives who say they can’t replace outside employment counsel without paying a potentially fearsome price, such as prejudicing the defense of an existing claim.
The reality is quite different. Assuming you’re not walking up the courthouse steps on the first day of trial, changing counsel is always a viable option.
I spoke with several HR executives who reported having had good—and not-so-good—experiences with outside employment law counsel. They mentioned five factors that can cause a relationship to go south:
Although any one of these factors is problematic, some HR executives reported experiencing more than one simultaneously. No one should have to put up with this. You’re the customer.
Provided you pay what’s owed to the departing law firm, you own the files, including your attorney’s written work products. The wheel won’t have to be reinvented. Besides, the departing lawyer and firm aren’t likely to turn against you; they won’t want anyone bad-mouthing their services.
If you treat the lawyer with respect, he or she will most likely be cooperative in the transition. Your message should be "I’m sorry, but we don’t have the necessary trust or confidence, and we have decided to make a change in counsel." Your message should not be "Bad lawyer! We hate you!"
If you’re concerned about the transition costing a lot of money, know that in most cases it won’t. Most replacement counsel will be willing to write off some if not all of their "get up to speed" time. Plus, if the problem is not an issue of confidence in the attorney’s competence but some combination of the other four problem factors, departing counsel has probably maintained organized, up-to-date files that will make for an efficient handoff to new counsel. If the problem is questionable attorney competence, keeping that attorney around isn’t an option anyway because you’ll only find yourself in a deeper hole.
If your concern is finding competent replacement counsel and you’re in a city of any appreciable size, you’ll have several good choices. Our country is populated with numerous able and experienced employment law attorneys. Check with fellow HR professionals at other companies to find out whom they use and like.
If you’re in a more remote location, get referrals for qualified employment law counsel in the nearest city. Discuss what your new attorney is willing or able to do to minimize the extra expense resulting from geographic distance and jurisdictional difference.
Here’s an alternative: Instead of switching horses, switch jockeys. Law firms have attorneys in all shapes and sizes, attitudes and aptitudes. The lawyer who fails to meet your expectations may have a partner who can and will.
It might seem awkward to raise the subject, but most law firms will want the opportunity to work with you if you express a lack of confidence in a particular attorney. The firm will most likely prefer switching attorneys to losing the work entirely and possibly the entire client relationship. If you’re not comfortable raising the subject with your attorney directly, you can contact another attorney you know at the firm. Failing that, contact the firm’s managing partner.
So we’ve resolved the question of whether you can switch attorneys. The next question is whether you should or whether there are alternatives to try first.
‘Cool Hand Luke’ Problem
Of the five problem factors, only a lack of confidence in the attorney’s competence is truly substantive. The other four problems are related to style. Thus, while all five are critically important, only the first is irremediable.
If your lawyer doesn’t have the necessary chops, replace him or her with someone who does. If, however, the problem is a combination of the other four factors, it’s possible your attorney-client relationship can be saved. Maybe you have a "Cool Hand Luke" problem: Remember the famous line "What we’ve got here is failure to communicate"?
The HR professionals who shared with me their problematic dealings with employment law counsel acknowledged that they never had direct discussions with their attorneys regarding their expectations of counsel’s behavior or regarding the problems themselves.
"Maybe I was a bit too intimidated to say anything," one HR executive explained. "After all, they’re the experts with the law degree. Besides, I felt they ought to know what’s appropriate and what’s not."
Another said, "I didn’t want to make him mad at me. I was afraid he’d take it out on the case."
Just like the fears of changing lawyers, the fears of confronting counsel are greatly exaggerated. Talking to your lawyer is easier than you may think. Rather than construing what you say as an attack, your attorney is more likely to view it as an opportunity. No lawyer—or almost no lawyer—wants to lose a good client. You’re giving the lawyer a chance to save the relationship.
So what if you’re not a legal expert? You’re an HR expert. You know how the discipline process works: You provide notice and an opportunity to improve.
Use this approach with your attorney. Give your lawyer a direct, specific and clear message of the gap between his or her behavior and your expectations of the same, your desire that the gap be closed promptly and that the relationship continue, and the necessity that the gap either be closed or the attorney replaced.
Discuss your expectations as soon as possible, preferably at the outset of the relationship. Recasting the five problem factors as positive performance and professional expectations, here’s a suggested template:
"Mr. Lawyer, I would like to share with you what I believe will create a foundation for a great relationship between us and where I will feel fortunate to have you as our attorney. I have five fundamental expectations.
"First, that you have thorough knowledge and experience in labor and employment law and will use your expertise to best serve our interests.
"Second, that you and I will work with each other in a spirit of mutual respect and collaboration.
"Third, that you will be responsive to my communications. I understand you have other clients and priorities that have to be addressed. But I never want to have to guess whether or when you will respond to me.
"Fourth, that you will adopt a business perspective in representing us. That means identifying alternative courses of action whenever possible so that we can evaluate the risks, costs and benefits of each to decide what’s in our company’s best overall interest.
‘No Surprises’ Billing
"Fifth, that you will take a ‘no surprises’ approach to billing. This means having a frank discussion upfront regarding what is and isn’t billable and keeping me in the loop as to what services are being provided and what their costs are. When the unexpected arises, you’ll let me know as soon as possible so that we can adjust accordingly."
Training, budgeting and legal research databases, for example, probably shouldn’t be billable.
After you finish your speech, consider adding this for good measure:
"If you treat me this way, rest assured that you will have a loyal, supportive client who will sing your praises and pay your bills—promptly and in full."
Perhaps your speech will differ a bit from the template. That’s fine. After all, they’re your expectations, not mine. But you should give this speech. It should include what you conclude will best define and achieve your objectives, give you confidence that you pay a reasonable price for the services you receive, and make you feel good about dealing with your lawyer.
By taking this approach, you create a substantial possibility of establishing a meaningful relationship. Otherwise, the chances will be near zero. Moreover, if your effort doesn’t work and the problems continue, you’ll be ready, willing and able, with a clear conscience, to switch attorneys.
The author is a partner with Ater Wynne LLP in Portland, Ore., and has written The Star Profile: A Management Tool to Unleash Employee Potential
(Davies-Black Publishing, 2008). Contact him at
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