Decision Vision

A Podcast
for Decision Makers

Episode 54

Should I Fire
My Attorney?

 

Episode 54: Should I Fire My Attorney?

“Should I fire my attorney?” is a question a lot of business clients consider, particularly in emotionally charged situations such as litigation. “Decision Vision” host Mike Blake explores different aspects of this question with veteran business attorney Jeff Berman of Berman Fink Van Horn PC. “Decision Vision” is presented by Brady Ware & Company.

Jeff Berman, Berman Fink Van Horn, PC

Decision Vision Podcast Episode 54 | Should I Fire My Attorney? | Jeff Berman | Brady Ware

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Transcript: Should I Fire My Attorney? – Episode 54

 

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Intro:
Welcome to Decision Vision, a podcast series focusing on critical business decisions, brought to you by Brady Ware & Company. Brady Ware is a regional, full-service accounting and advisory firm that helps businesses and entrepreneurs make visions a reality.

Mike Blake:
Welcome to Decision Vision, a podcast giving you, the listener, clear vision to make great decisions. In each episode, we discuss the process of decision making on a different topic from the business owner’s or executive’s perspective. We aren’t necessarily telling you what to do, but we can put you in a position to make an informed decision on your own and understand when you might need help along the way.

Mike Blake:
My name is Mike Blake, and I’m your host for today’s program. I’m a Director at Brady Ware & Company, a full-service accounting firm based in Dayton, Ohio, with offices in Dayton; Columbus, Ohio; Richmond, Indiana; and Alpharetta, Georgia, which is where we are recording today. Brady Ware is sponsoring this podcast. If you like this podcast, please subscribe on your favorite podcast aggregator and please consider leaving a review of the podcast as well.

Mike Blake:
So, today, we’re going to talk a little bit about a somewhat contentious topic, which is, should I fire my lawyer? And I want to address this topic because as a business advisor, I’m asked to frankly opine on whether or not a client is getting good representation from their lawyer and maybe why that is. And now, I’m not an attorney. I don’t opine on matters of law. I have no idea if somebody is getting good legal advice or not. But I think what we’re going to find is that the legal advice itself is a fraction of what goes into a constructive or a non-constructive client-lawyer relationship.

Mike Blake:
And I like this topic because I think as a service provider myself, with some of our clients, we do go through our ups and downs. Sometimes, it’s something that I wish I would have done differently. Sometimes, it’s really nobody’s fault of their own. And sometimes, you find that maybe that isn’t a relationship that’s working, and it really is best for both parties to kind of go their separate ways. And in other cases, it’s actually an opportunity to kind of strengthen the relationship.

Mike Blake:
But a lawyer, legal counsel is one of the most important and intimate relationships you can have in business. I think that, particularly, in United States, because we have such a highly developed legal culture and the nature of a lawyer as a business advisor I think is as strong here as it is in any place in the world. And it’s really hard to do business well and the long term if you don’t have great legal advice. And if you’re really not getting the kind of relationship that you want, then maybe you should think about changing.

Mike Blake:
But I think the part where I caution my clients on making a change is understand what is it exactly that you’re unhappy about, right? Understand what is it that that your legal counsel can reasonably impact versus maybe they’re getting you the best out of a suboptimal situation. And in fairness, in about a month or so, we’ll record a podcast, and should I fire my CPA, too. So, this is not taking a shot at lawyers.

Mike Blake:
It’s really trying to walk through what I think is a healthy process that when you have people in your circle who are trusted advisors, I think it is critical that, every once in a while, you take a step back, and you reassess, “Is that trusted advisor relationship working as well for me as it can and should? And if it’s not, what is the remedy? Is the remedy to, then, make the relationship better or is the remedy to terminate the relationship and do something else?” But spoiler alert, it’s not, “I’m pissed off today. And so, I’m just going to fire everybody and move on.” That’s usually not the right—sometimes, it’s the right answer but, usually, it’s not. And we’re going to kind of walk through that today.

Mike Blake:
And joining us today to talk about this topic is my pal, Jeff Berman, who’s a partner and co-founder of Berman Fink Van Horn. Berman Fink Van Horn is a full-service law firm that provides legal services to a diverse group of clients in the areas of business and real estate litigation, non-compete agreements and trade secrets, mergers, acquisitions and corporate finance, labor and employment, banking and creditors rights, commercial real estate and general legal services for mid-market companies, family-owned businesses and entrepreneurial startup endeavors. Their attorneys take great pride in delivering results-driven, high-quality experience based on knowledge, expertise and a personal touch unique to Berman Fink Van Horn.

Mike Blake:
A shareholder at Berman Fink Van Horn, Jeff leads the firm’s corporate and business practice. In addition to day-to-day business matters, the practice includes mergers and acquisitions for middle-market companies, employment agreements, succession and estate planning for business owners, commercial real estate and contracts and agreements of all kinds. In the community, Jeff serves on the Jewish HomeLife Board of Directors and is Chair of the Business Strategic Planning Committee. He’s a Georgia native, having grown up in Augusta, Georgia, graduate of the University of North Carolina at Chapel Hill and Emory University School of Law. Jeff Berman, thank you for coming to the program.

Jeff Berman:
My pleasure. Thank you, Michael, for having me.

Mike Blake:
And really thank you because I think it’s brave to talk about this topic. And frankly, that’s why I reached out to you because I don’t think everybody would have the courage to talk about this this topic. Because it is sensitive and it requires, I think, vulnerability and introspection and self-reflection to some extent. Because I won’t put words in your mouth, but I’ll put myself up out there, you know, not every client relationship I’ve had in my career has lasted forever and has been happily ever after. And sometimes, it’s appropriate for that relationship to end.

Mike Blake:
But there are a lot more people, frankly, who have legal counsel in their circle than some idiot valuation guy like me. And so, I think there’s a much wider appeal to this discussion. So, again, kudos to you for being willing to address it, though I’m not at all surprised. So, let me dive right into it. You know, how often do clients fire their lawyers? Is that a fairly common occurrence? Is that rare? Is it all over the board? What’s your experience in that regard?

Jeff Berman:
I think my experience and I think it’s different from, say, a litigation practice, a lawyer that practices litigation and a lawyer that’s in a transactional corporate practice, which is what I’m in. And I think a lot of it depends upon the type of practice. For instance, a lawyer that handles divorces. Those lawyers are probably attuned to people are going to fire them because people do not like their divorce lawyers.

Mike Blake:
And talking about an emotionally-charged situation anywhere where you’re probably walking in mad.

Jeff Berman:
Correct. I’ve had family lawyers, divorce lawyers tell me that they are reluctant to even referred their clients to, say, a financial adviser because by the time the relationship between that divorce lawyer and their client end, the client hates the lawyer. So, therefore, they’re going to hate the financial advisers. So, they know, going in, there’s a lot of risk. PI lawyers, probably a high-

Mike Blake:
Personal injury.

Jeff Berman:
Yeah, personal injury lawyers probably a high risk also. Generally, though, people do fire their lawyers. And as a lawyer and I know we’ll talk about as we go on today, that’s fraught with a lot of anxiety. And many times, it’s fraught with making a mistake. So, I know as we go on, we’ll delve into that a little bit more. It does happen and probably, it happens pretty frequently. We’re fortunate in my firm that it doesn’t happen a whole lot.

Mike Blake:
Yeah.

Jeff Berman:
And I think it’s the way we deal with clients that prevents it from happening with us.

Mike Blake:
Yeah. And sometimes, this is not necessarily something—the relationship goes both ways necessarily and interestingly, I think to this day, our most popular podcast is on the topic, should I fire a client? And that was the second one that we did. And that one just sort of blew up and put us on the map. I did not think it would have been that popular, but it was. But, you know, sometimes, I think lawyers do fire their clients as well, right?

Jeff Berman:
Absolutely. When I was very early in my practice, n older attorney said to me, “Jeff, don’t take every client that walks in the door.” And that is advice to live by. Most law firms should have engagement letters. And those engagement letters typically would explain the reasons why a lawyer may terminate the relationship. For instance, our engagement letter says that if a client insists upon us presenting a claim or a defense that isn’t warranted by law, and we don’t think there’s a reasonable expectation that the law could change. That’s one reason we would fire a client.

Jeff Berman:
If the client wanted us to pursue some illegal activity, that would be a reason we would say we need to terminate this relationship. If the client doesn’t pay us, that’s a big one, of course. We are a business and that’s how we earn our living. But if a client doesn’t pay us, that is grounds for us to terminate our relationship. And generally, if the client just fails to cooperate. If we need to have a conversation about a particular matter and we need to have it today or tomorrow and the client just disappears, we’re not going to be able to provide the service the client wants. They’re going to be unhappy. That’s a reason to terminate a relationship.

Mike Blake:
In my own experience, one thing, I think, at which I have improved, I’m certainly not perfect, now, I like to think it’s one of the benefits of aging and having gray hair and two arthritic ankles is, I’ve learned when to fire clients as well, and walk away from clients. And doesn’t mean that they’re bad people, but one thing I’ve observed in my life, in my career is that I can tell you the letter, every client that I regretted taking, there’s not a single client I can identify that I regretted walking away from.

Jeff Berman:
Agreed.

Mike Blake:
Right.

Jeff Berman:
Yes.

Mike Blake:
There wasn’t, “Why did I do that?” Right? But every time I’ve walked away from one, like yeah, that was the right decision.

Jeff Berman:
And we still talk about those type of clients all the time in our office as a learning experience. This was a reason it didn’t work. Avoid this in the future.

Mike Blake:
The cautionary tales. Not for us, just for us, our partners and our younger associates, right?

Jeff Berman:
Absolutely.

Mike Blake:
“Don’t do it the way that I did it.”

Jeff Berman:
Correct.

Mike Blake:
So, you know, I hadn’t thought of this, but to me, it’s intuitively right that certain kinds of law, I think, are more prone to changing legal counsel. And probably, the more emotionally-charged the matter is, the more likely it is, I guess, you’re going to change, which implies to me that the decision to change legal counsel is largely or a very heavily emotionally-charged decision.

Jeff Berman:
Yes.

Mike Blake:
Is that fair?

Jeff Berman:
I think yes.

Mike Blake:
And so, is emotion a big driver then behind that decision? And if so, what are the emotions you think that kind of take charge or lead that decision process?

Jeff Berman:
I think that a lot of lawyers or if clients are going to leave lawyers, there’s probably a litany of reasons. And emotion is a very big driver in that. It’s important that a lawyer communicates with their client. And communication is certainly sending emails, sending text, making phone calls when there’s something really important. You don’t want to send a client a really important matter or issue by email, call them.

Jeff Berman:
Communication is also, you want that client to be involved in decisions. You want the client to be engaged. You want them to be involved in their case. And if they’re not, they’re going to drift away. In litigation, again, to separate that from, say, a transactional practice, in litigation, if a matter is in court and a motion is lost, something that the client is asking the court to do, and the court disagrees, clients take that hard. And emotionally, they are very unhappy.

Jeff Berman:
If the attorney had communicated, had explained the risk, had explained that they could lose, but it’s worth the risk, then the client is much more likely to stay. I think clients hate to bring up billing again, but billing is one of those reasons that clients may leave. They may not understand clearly the billing process. So, it’s incumbent upon the lawyer to explain that early, early, early in the process. And for instance, in addition, at at our firm, our bills are extremely detailed. We believe clients pay more attention to our bill than they made to anything else they get from our law firm.

Mike Blake:
Right.

Jeff Berman:
And if you just simply say work performed $X, that doesn’t tell them what you’re doing. So, that’s a form of communication for us. Also, if a lawyer is unprofessional, the lawyer doesn’t show up on time for a meeting, doesn’t appear to be prepared, that may be grounds to at least start thinking about, “I may need another lawyer.” Sometimes, clients don’t agree with how a matter is being handled. And again, you want to communicate with your client, explain why. But if the client’s unhappy, then they may well terminate the relationship. If the lawyer seems incompetent and sometimes, that’s difficult for a client to tell because we’re the lawyers, they’re not. They’re seeking advice from us.

Jeff Berman:
And if you’re talking to your lawyer and that lawyer just does not have answers to probably issues that you would think they should, then maybe they’re not the right lawyer. And that should be a reason to consider moving on to another attorney. And maybe finally, just incompatible styles. Some lawyers are bulldogs, some lawyers are not. That doesn’t make one better than the other. But if you’re a client that want somebody just to go beat the other side over the head and your client’s not that bulldog, it’s a relationship that’s prone to be unsuccessful. So, that would be a reason, I think, that a client would move on to another to another lawyer.

Mike Blake:
Let me sink my teeth in that last one a bit because I think that’s really interesting. I don’t do litigation. I’m not a particularly good or enthusiastic expert witness. But I know enough about the process. I can talk about it intelligently. And when I’m asked for a referral to a litigation attorney, I often will counsel my clients to hire somebody that is the direct opposite of who they are emotionally, right? In other words, if I have a client who I sense is a passive type that I think has a bias towards conciliation, then I think a more aggressive attorney serves them well because that attorney’s going to counterbalance that and make sure they’re not leaving opportunities on the table that they should be more aggressive in pursuing.

Mike Blake:
Conversely, if I have somebody that I know is loaded for bear and they’re very combative and they just want to run to the courtroom, I tend to refer to them an attorney that I know is going to oppose them, I think, you know, that likes to negotiate, that likes to try to settle things and find that middle ground where appropriate to help manage expectations, for example, that you’re not going to have two people charging in, thinking they got a slam-dunk case when, in fact, that they don’t. I’m curious what you think about that about that mindset.

Jeff Berman:
Michael, I know that the advice you’re suggesting is well-meaning, but I tend to disagree with it.

Mike Blake:
Good.

Jeff Berman:
I think that if a client is looking for someone to just pound away and be extremely aggressive, if you pair that client with a more reasonable attorney, reasonable is probably not the best word, but calmer, more deliberate attorney, that client’s going to get incredibly frustrated. It happens. I’ve seen it. Likewise, if you are a client that is calm, is thoughtful, wants to be sure they’re making the right decision and wants a lot of interaction with the lawyer and explanations on why things are being done the way they are, I think that that client will work better with the lawyer that provides that kind of service. Litigation is incredibly stressful for everybody, including the lawyers.

Mike Blake:
Yeah.

Jeff Berman:
And if that relationship is not a relationship that you can sit down and have a beer with the person, you talk through the issues, it’s just not going to be a good relationship.

Mike Blake:
Interesting. Okay. So, I’m going to leave that there. I’m going to go back and process that.

Jeff Berman:
Okay.

Mike Blake:
One other thing that you brought up that I think is important and underrated is on billing, right? Yeah. I think my experience is that most clients are perfectly willing to pay for value, but they would like some transparency in it. And I’m delighted to hear that it sounds like you tend to be on the side of being overly detailed rather than undetailed in your billing. Is that a fair characterization?

Jeff Berman:
Very fair, yes.

Mike Blake:
And I discovered only recently in our firm, we’re the exact opposite. You know, when we sent bills out, I don’t always see kind of the final version as it goes out. I only learned that we don’t send out a lot of detail, which we are now going to fix.

Jeff Berman:
Good. Good.

Mike Blake:
Because I really don’t like that. I’m candidly surprised that we haven’t heard more objections from our clients over that, right? Even when we have a fixed fee, is mostly my model, I still think it’s important that the client understand kind of, you know, there was time spent and where was that spent and who spent it, right? I just think that’s a reasonable thing for a client to expect. And lack of transparency leads to lack of trust, which lets imaginations run wild, which then creates other problems in the relationship.

Jeff Berman:
And again, detailed bills also allow a client to see exactly what is going on so that it’s just another way to communicate with the client as to what’s going on in the case.

Mike Blake:
So, lawyers aren’t cheap, for the most part.

Jeff Berman:
Correct.

Mike Blake:
And most CPAs are not cheap either. Is it unreasonable to demand perfection?

Jeff Berman:
That’s a tough question to answer. I would start the answer by, to a client, what is perfection? Is perfection in a transaction asking in an employment agreement if you’re going to be the employee to get two years severance? And as a lawyer, you know, the employer is not going to give two years severance. If the client wants that and that’s perfection to them, then I’m not going to provide perfection because I can estimate that the employer’s not going to give that.

Jeff Berman:
So, understanding from the client what they think is perfection is important. On the litigation side, if you have a case and there are certain amount of damages that you believe you’re entitled to, and at the end of the day, you don’t get that, is that a failure of perfection or is it just a matter of the facts that you came to the lawyer with would not allow for the result exactly like you wanted? So, yes, you want a lawyer to do a really good job for you. And I think that’s the best we can provide. To anticipate perfection is going to lead you to being disappointed.

Mike Blake:
So, I want to expand upon that a little bit, especially in litigation. You know, I believe and please tell me if I’m wrong, you know, you can try a great case and still come up short.

Jeff Berman:
Absolutely.

Mike Blake:
Because you don’t control all of the outcomes, right? Even assuming for the moment, the client gives you everything you need, which isn’t always the case, but assuming the client even gives you everything that you need, judges make mistakes, juries make mistakes. I believe, anyway, you may not want to go on record saying that, but I firmly believe judges and juries make mistakes. I think they do it. I think they do it a lot because they’re human beings.

Jeff Berman:
And that’s why we have appeals courts. We have a process that if a mistake is made or perceived mistake, that there is a higher court typically that can review it.

Mike Blake:
Right. But it’s, you know, most lawyers don’t exist in a world in which they control every avenue, right? Even state lawyers don’t control everything. There’s always a probate court. There’s an unknown error, there’s something, there’s some variable out there that, you know, is just not reasonably foreseeable by any practitioner, right?

Jeff Berman:
Right.

Mike Blake:
And so, I think the way you responded to this question is really interesting because it’s really about understanding what is the standard of perfection, right?

Jeff Berman:
Yes.

Mike Blake:
And I guess what we’re really getting to is, the standard of perfection is, are you doing your best? Do you have a command of the facts and the law and have the capacity to put in the mental energy and focus required to be that vigorous advocate for your client?

Jeff Berman:
Correct. And it’s also, you need to set reasonable expectations for your client.

Mike Blake:
Yeah.

Jeff Berman:
And as long as you’re setting reasonable expectations and you can come close to those reasonable expectations, then arguably, that’s perfection.

Mike Blake:
Yeah.

Jeff Berman:
You’ve done what you said you could do and if you don’t accomplish it, as long as the client understands, you know, you’ve done the best you could.

Mike Blake:
So, if somebody decides they do want to make a change, what are they facing? What is the to-do list or the process look like? And I guess it probably differs, I guess, in the nature of the law that you’re practicing. So, answer this however you feel the most comfortable.

Jeff Berman:
Sure.

Mike Blake:
But what’s involved in changing legal counsel?

Jeff Berman:
It is very different from, say, a transactional lawyer, a corporate lawyer and a litigation lawyer or dealing with a litigation matter. A transaction lawyer can be fired on the spot and the client can walk in or send an email or text and say, “You’re fired.” And that’s the end of the relationship. You have to deal with, how do you move the file to a new attorney? But that, again, can be a pretty simple process. From the litigation side, it is much more cumbersome.

Jeff Berman:
From the litigation side, the attorney has to actually file something to withdraw. And that would be just the attorney wanting to withdraw. The client and the attorney could agree to a withdrawal. In both cases, a court has to approve it. Sometimes, new counsel and the client would enter what’s called a notice of appearance, where the lawyer is saying, “I am stepping in now to replace another lawyer.” So, in the litigation setting, it’s more cumbersome. For lawyers, they do it. But it’s still more steps. Whereas again, on the transactional side, it’s very easy to accomplish. The results of that change, you know, are not as simple as the actual change itself.

Mike Blake:
Right. Well, let’s talk about the transaction side here because that’s the area, I guess, where I feel most comfortable talking about. And I can appreciate, you know, on one level, you can sort of change attorneys and you don’t need anybody’s court permission, right? Pay the outstanding invoice. I imagine there’s some process that maybe is governed by bar ethics, I guess, in terms of turning over work files and doing so in a prompt fashion, I guess, you can comment on that. But even that isn’t necessarily costless. If you’re involved in a transaction, let’s say, and, you know, if I’m negotiating a deal with a party and then, midway through, the party changes attorneys, that can be pretty jarring to the discussion as well, can’t it?

Jeff Berman:
It can be very jarring. And you mentioned about at the termination of a relationship, paying fees and/or getting the file transferred. Ethically, we need to turn over the file. We can also say, “Wait a minute, we’re going to hold the file until you pay us.”

Mike Blake:
Yeah.

Jeff Berman:
The standard is if we are really negatively affecting the client by not turning over the file, whether we’ve been paid or not, that’s really the standard. And if we are going to be negatively impacting the client, then we need to go ahead and turn the file over and hopefully get paid later. Changing lawyers in mid-course, and I will talk as you want to in a transaction setting, I think the first thing that would say to me, if the other side changes lawyers in the middle is something’s wrong with that client or something is going on between the client and the attorney. The client may be being very unreasonable.

Mike Blake:
Yeah.

Jeff Berman:
So, that’s not a good look. Also, once you’ve got an attorney that’s got that institutional knowledge and ideally knows all of the facts because they’ve been involved from the beginning, a new attorney in the matter, I believe, is just going to have a really difficult time catching up with all the nuances. And plus, the cost for that attorney to catch up to those nuances is going to be very expensive. So, you are probably not doubling the fees you would have paid all in, but you’re certainly increasing them by 30% to 50%. So, there are those risks. It’s the appearance and the cost factor. And at the end of the day, will you get the result you want potentially because something gets missed, not purposefully, but just by virtue of the change.

Mike Blake:
So, yeah, I can imagine that as an attorney trying to jump in mid-deal, it may be hard to find attorneys that would even be willing to take the case. I guess depends on how busy they are, frankly, right? But you’re really asking somebody to jump on a treadmill going full speed from a dead stop.

Jeff Berman:
Yes.

Mike Blake:
And that’s hard.

Jeff Berman:
It’s very hard and they’re different places.

Mike Blake:
And there’s risk in that, too, right?

Jeff Berman:
Yes.

Mike Blake:
It’s not just about not looking incompetent, but like jumping on a treadmill, you get that wrong, next thing you know, you got a busted ankle.

Jeff Berman:
Absolutely. There may be something you didn’t know that you missed in the final document or you know, the question is always, are you taking on exposure somehow because the prior lawyer didn’t do something and you didn’t know that it should or should not have been done? So, are you taking on risk that the prior counsel didn’t do the job that they should have done? So, that’s always a risk also by taking the case in the middle.

Mike Blake:
And that’s something I hear a lot. When lawyers are approached about taking a case, taking some sort of matter midstream like that is, you know, they’re often reluctant because what don’t I know, especially, you know, the legal field, particularly if it’s local, tends to be a small world, right? So, you have a sense as to who you think the good attorneys are and the not-as-good attorneys are, at least the ones you kind of think, you know, “I wouldn’t necessarily practice law in that way.” We’ll just leave it at that, right? And in particular, if they fire somebody that you think is a pretty good attorney and now, they’re coming to you thinking they got a different result, it may be difficult to hire somebody as good a caliber as what they had going in, right?

Jeff Berman:
Yes.

Mike Blake:
Because, you know, there’s no law that says you have to take the case.

Jeff Berman:
And I think it’s very difficult, ultimately, for a client to truly appreciate the quality of an attorney. They’re just so many nuances that we have to deal with and so much gray area. And some attorneys may handle it one way, some attorneys may handle it another. And it doesn’t make it right or wrong, but, you know, I look at clients sometimes and think, do you really understand what we’re talking about here? Because it’s complicated.

Mike Blake:
Yeah.

Jeff Berman:
And there may been law school classes that taught about that particular subject, in here, the clients being asked to grasp it in 15 minutes. So, it’s hard. It’s very hard. And I think, you know, dangerous isn’t the right word when you’re changing attorneys, but there is certainly risk involved.

Mike Blake:
You definitely have to sort of pick your way around the landmines for sure, right?

Jeff Berman:
Yes.

Mike Blake:
And I think in that way, your profession and mine are actually quite similar because they’re highly technical. In most cases, we are working with clients that would find it very hard independently to evaluate the strength of our work. And often, the only objective in their mind, view in terms of how good a job we’re doing, is, are we meeting their expectations on the way in?

Jeff Berman:
Yes.

Mike Blake:
But, you know, things change. And in my world, you know, I can tell you right now, a client’s going to be happy if I determine or appraise a company at roughly the number they thought I was going in, which when that happens, terrifies me, right? Because it ought to be at least a little bit different, right? And if it’s not the number they thought, then I’m just a hack, right? And it takes a little bit of work to kind of get through that. And so, maybe I’m a hack, but let’s just assume I’m not for a minute and kind of walk through kind of what we did. I think the law sort of works that way, too, because, again, it’s not all up to you. Sometimes, you have to work within a set of constraints that may or may not provide that straight and clear path to the desired result, right?

Jeff Berman:
And things are in negotiation.

Mike Blake:
Right.

Jeff Berman:
Assuming you’ve got competent counsel on the other side, a client that I’m representing is not going to get everything they want. It’s just a given. So, it’s a negotiation. Again, setting client expectations is key. One thing I need to point out that I think we missed or not, didn’t point out, in terms of changing lawyers, it’s different if you are a company. If a company engages a lawyer and then, that company terminates the lawyer, particularly in litigation, a company cannot represent itself. Like an individual can be pro se. They could go into court and not have an attorney. A corporation, a company has to have an attorney. That’s just one of the rules.

Mike Blake:
Okay. I didn’t know that.

Jeff Berman:
So, anybody listening that is thinking of changing an attorney and you are part of a company that’s doing that, you need to have another lawyer ready to go immediately.

Mike Blake:
So, your in-house counsel cannot represent you.

Jeff Berman:
Correct. You have to have an attorney, an outside counsel who is performing the legal services for you.

Mike Blake:
Okay. Interesting. So, here’s another question. It’s not on the script, but I think it’s important. As new counsel coming in, whether it’s litigation or some other matter, A, are you allowed to talk to the prior counsel? Are they allowed to talk to you? And if so, is that something that you would do as the new attorney, is your due diligence as to whether or not you’d want to take on that case?

Jeff Berman:
Absolutely. And I would hope that the client would approve that. And I think it really comes down to, will the client authorize prior counsel to talk? That’s really the way that it would need to proceed. And if for no other reason than cost savings, I can sit and review a 60-page purchase and sale agreement, I can talk to the first lawyer and that lawyer can likely help me understand what’s in those 60 pages a lot quicker than I can pick it up by reading those 60 pages. Still need to read them, but if I’ve got the insight prior to reading it, it will help me and ultimately help the client and also save costs. So, I would hope that a client would say, “Yes, you can talk to the prior attorney.”

Mike Blake:
Now-

Jeff Berman:
If you say no, it’s kind of a red flag. If the client says no, it’s kind of a red flag also. What’s that attorney going to say?

Mike Blake:
Well, yeah. And that’s what I wanted to get in because you answered that question a little bit differently than I thought you would, but it’s still a good answer. But I’ll ask it differently because of another piece of information I want to tease out. If I was the potential new attorney coming in on the matter, before I took on the case, I would just want to talk to the attorney and say, “Why didn’t that relationship work out?” Right? “Is this person a lunatic?” Maybe it’s something benign, maybe that you suddenly discovered that you had a conflict or for whatever reason. But I would think, if you can, you’d want to learn that initially to get that post-mortem, right?

Jeff Berman:
I think you could. You can get high-level information like you’ve described. Is that person a lunatic or not? But in terms of anything substantive, I think you really need the client’s permission for that to happen.

Mike Blake:
But would you ask for that permission-

Jeff Berman:
Absolutely.

Mike Blake:
… even before you’re engaged to kind of vet that, right?

Jeff Berman:
Yes. Yeah. Just part of our due diligence on whether we should take that client or not.

Mike Blake:
Yeah.

Jeff Berman:
And I mentioned due diligence. I would encourage clients to do due diligence on their lawyers.

Mike Blake:
Yeah.

Jeff Berman:
You know, whether that’s talking to other people, whether that’s talking to other lawyers, whether that’s going online and searching. One of my pet peeves, though, is even though you can search online and there are all kinds of awards that lawyers seem to have, I’m not sure those awards are always truly indicative of the legal competence of the lawyer. That’s probably speaking out of school a little bit. Not many lawyers would like to hear that. But that’s the way I’d look at it. So, it’s really doing your due diligence, sitting down, talking with the attorney, making sure that it is a good relationship, that it’s a person you can get along with because it’s a very close relationship. And if you can’t get along with each other, that should be a red flag.

Mike Blake:
So, a follow-up question I want to ask on this because I think given where this is going, this is really important, given what I’m learning today, if somebody is in a position to think they might want to change an attorney, I think one of the piece of advice I would give him is, “If you decide to change legal counsel, this needs to be your last change for a long time.”

Jeff Berman:
Ideally, yes. Going to a third lawyer, you’re going to have a tough time finding that third lawyer.

Mike Blake:
Right. Right. That’s going to be some of the most likely desperate for the business, right?

Jeff Berman:
Yes.

Mike Blake:
One change, okay. Things didn’t work out. Maybe there’s just a bad connection or that lawyer in that particular case didn’t do a good job, but man, you’re going to change twice in the same matter or more, you know, that just streams warning, Will Robinson, that kind of thing, right?

Jeff Berman:
Yes.

Mike Blake:
So, part of that calculus is, you know, if you’re going to make that change, be sure that person is going to follow you, that that’s going to be the person because you’re probably not going to have an opportunity to make that change again and improve your situation realistically.

Jeff Berman:
So, you’re really reinforcing the idea of when you are looking for an attorney, do your absolute best to be sure the first when you engage is someone that’s going to be able to handle the case like you want it to be handled or handled the transaction like you want it to be handled. Of course, if the lawyer is unprofessional, turns out to be incompetent, misses deadlines, that those kinds of reasons would make it easier to go to a second lawyer. That second lawyer would understand and appreciate that.

Mike Blake:
Right.

Jeff Berman:
But again, going to a third lawyer at some point, people aren’t going to want to take your case for fear that you’re going to leave them and go to try to find a lawyer number four.

Mike Blake:
Right. At some point, it’s not everybody else, it’s you.

Jeff Berman:
Correct.

Mike Blake:
So, here’s a potentially unfair question, but I like unfair questions, should you fire a lawyer over one mistake?

Jeff Berman:
Again, that gets back similar to the discussion about perfection.

Mike Blake:
Yeah.

Jeff Berman:
It’s identifying the mistake, for one thing. But again, early in my career, and this goes back many years, an older attorney at that time told me that, “Jeff, all attorneys make mistakes. The good ones get out of them.” And I think that there is truth to that.

Mike Blake:
Yeah.

Jeff Berman:
And, you know, again, keep in mind, lawyers are humans. Humans, probably somewhere in the definition says we make mistakes. So, mistakes can be somewhat anticipated, but it’s the impact of the mistake.

Mike Blake:
Yeah.

Jeff Berman:
You know, if a paragraph gets left out of a purchase and sale agreement or an employment agreement and the client picks up on that and says, “Hey, you forgot this paragraph and I want it in there” or “I want this particular term, I want this particular amount for severance”, and the lawyer puts the incorrect number or forgets to put it, that’s a mistake. Is that a mistake worthy of firing the attorney? To me, no. Again, as long as the relationship otherwise is really strong.

Mike Blake:
Right.

Jeff Berman:
There are mistakes like missing a deadline. You have to have an answer filed in court by April 1 and the lawyer misses that. That’s a pretty serious mistake. And that’s certainly a mistake worthy of thinking about, should I change lawyers? And I would encourage somebody in that position, a client in that position, to really sit down with the lawyer and understand why it happened and what the impact is going to be and how do we get out of it? Because, again, the lawyer may have—I hate to say a valid excuse because I’m not sure there is really a good excuse for missing a deadline, but sitting down, talking with a lawyer, understanding it may be the preferred way to go as opposed to jumping to another lawyer because of all of the issues related to jumping to another lawyer.

Mike Blake:
Right. Okay. So, sometimes, the thought process of changing counsel may be prompted by another legal counsel suitor jumping in that would like that business. And I’m curious. It’s even awkward to ask the question because it’s hard to ask it in a way that doesn’t make me sound like a gold-plated jerk. But I already mentioned that, so I’ll just thought out there anyway. You know, is it common, I guess, in your profession where maybe someone’s kind of nipping at the heels, trying to displace you, for example, as legal counsel because they would like that client?

Mike Blake:
Is that considered ethical? Is it gray business. Is it something that you encounter all the time? And if so, if a client sort of hears that, saying, “You know what, Jeff’s a great guy, but I think I can do a lot better. Let’s meet and review your case and see if we can get a better result than maybe, you know, what Jeff is getting for you guys.” There’s a question in there somewhere if you can kind of parse as you process this. How do you react to that kind of scenario?

Jeff Berman:
We think in my firm that other lawyers are always looking to poach clients, that it’s a given. Any client or any person out in the community potentially is going to run across other lawyers, and you can’t help but talk about your case somewhat, so you’re going to get opinions. There are also those lawyers who are just really looking to poach clients, particularly if it’s a corporation that’s a significant client.

Jeff Berman:
So, we do our best, again, going back to what we talked about earlier, of keeping clients informed, giving bills that make sense, being fair and reasonable in our billing. So, it clearly happens. I would suggest to clients to be careful because I don’t know how or it’d be very difficult to say I can get a better result for you than another attorney because probably at that point, we don’t know what the result is anyway.

Mike Blake:
Right.

Jeff Berman:
So, how do you measure “I can do better”? There may be times, however, that if you’re dealing with a lawyer that really doesn’t have the experience in the area and you talk to another lawyer and that lawyer seems to have much more knowledge about the kind of law you’re dealing with, then maybe the poach is a good thing. It clearly happens. We try to avoid letting it happen. It’s not unethical.

Mike Blake:
Okay.

Jeff Berman:
Whether it’s gray, maybe so. But it’s a competitive industry.

Mike Blake:
Okay.

Jeff Berman:
A lot of good lawyers out there, lot of lawyers that aren’t as good, but it clearly happens.

Mike Blake:
Interesting. Okay. So, just because somebody is kind of making a pitch for the business, that doesn’t necessarily mean they’re a bad person or a person of questionable ethics. That’s just what happens in a competitive business, I think is what I’m hearing you say.

Jeff Berman:
It is. And I mean, in my firm, I don’t think we would aggressively try to convince a client to leave an attorney.

Mike Blake:
Yeah. Yeah. And as a matter of personal practice, I generally don’t do that either. I typically will tell a client, you know, “If you’re happy with what you’ve got going on, great. If you have a question, happy to take the call.” But I generally won’t go further than that. But maybe I’m a sucker.

Jeff Berman:
And, you know, you mentioned earlier that there are a lot of lawyers in Atlanta and in the metro area, but it’s still a pretty small community.

Mike Blake:
Yeah.

Jeff Berman:
And if you get the reputation of being somebody that’s poaching clients, probably, to me, that’s not a reputation you want to have.

Mike Blake:
So, we’re running out of time here, but last question I want to get in here before we wrap up is, if you’re thinking about changing a lawyer, what are the three or four things that are most likely to represent a reasonable basis for changing counsel?

Jeff Berman:
Lack of communication.

Mike Blake:
Okay.

Jeff Berman:
We believe that you return emails daily as soon as you can. You just do it. You take phone calls. You keep clients informed of what’s going on in their matter. Failure to do those things are going to lead clients away from you. So, if your lawyer just doesn’t communicate with you, that’s just not a person you necessarily want to deal with in any relationship, especially one that is as tension-filled and as difficult as a relationship with a lawyer and a client. Again, if the lawyer just comes across as incompetent, yeah, you probably should start looking around.

Mike Blake:
And incompetent means not knowing answers to what ought to be fairly basic questions, obviously missing filing dates. To me, that’s borderline malpractice. You know, things of that nature might speak to the competence or lack thereof.

Jeff Berman:
Correct. Just again, an example, in any M&A transaction, there’s going to be due diligence where one side wants to look at all the information about the other side. And if you’re talking to a lawyer about an M&A deal, and they really don’t have a handle on due diligence, that’s probably not the lawyer you want to use because that’s almost as basic as you can get. And that’s probably an extreme example, but it’s still an example of where you expect lawyers to have some good knowledge of the transaction and to be able to walk you through it and explain to you what’s going to be involved. And if they can’t do that, that should be a red flag.

Mike Blake:
So, Jeff, we’re going to wrap up. There’s a lot more that we could have talked about today, but didn’t. But I do want to underscore that I think a key takeaway from this conversation is, if somebody is thinking about changing legal counsel, it’s not something to be taken lightly, right? And in some cases, that may be the result of a poor decision on the client’s part rather than anything that the lawyer necessarily did, has done, is doing. But it’s obviously a very complex decision. If somebody would like to learn more and maybe, you know, they’d like to get your expert insight into that thought process, can they contact you? And if so, what’s the best way to do that?

Jeff Berman:
Absolutely. Yes. Probably the best way to get in touch with me is through our website or through my email address, which is jberman@bfvlaw.com. I’d be very happy to talk to people and listen to why they are considering leaving or moving to another attorney and certainly giving my opinion, understanding it’s only my opinion, is that a good reason, a valid reason? And will a new attorney understand those reasons as valid reasons?

Mike Blake:
So, that’s going to wrap it up for today’s program. I’d like to thank Jeff Berman so much for joining us and sharing his expertise with us today. We’ll be exploring a new topic each week. So, please tune in so that when you’re faced with your next executive decision, you have clear vision when making it. If you enjoy these podcasts, please consider leaving a review with your favorite podcast aggregator. It helps people find us so that we can help them. Once again, this is Mike Blake. Our sponsor is Brady Ware & Company. And this has been the Decision Vision podcast.

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