For many, the legal system can be intimidating and difficult to navigate alone. But when you need an attorney –
whether it be to help manage your business, guide you through a divorce or family matter, or due to some unforeseen crisis – where do you start? We asked five legal professionals about hiring the right attorney, managing the cost and what benefits counsel can provide.
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What questions should someone ask when looking for an attorney?
Choosing the right attorney is a very important decision. When looking for an attorney, there are a few questions you should always ask.
First, how long have you practiced law? You want to know the lawyer’s expertise and his or her experience. You should be comfortable with your attorney’s level of expertise in the type of case you are hiring him or her to represent you on.
Second, what type of cases do you generally handle and what percentage of your practice is devoted to the practice area in question? The biggest misconception about attorneys is we know everything there is to know about the law. Just like doctors specialize in certain areas of medicine, most of us focus on certain areas of the law.
Third, what are your attorney fees and costs, and how are they billed? Will a portion or all of my case be handled by paralegals or legal assistants? This step is obviously an important one. You’ll want to know whether you can afford the lawyer’s services and how you will be required to pay. This is also the time to ask about payment options and how often – and under what circumstances – you will be billed.
Fourth, how will you let me know what’s happening with my case? Communication is key when working with a lawyer. If they do not tell you, be sure to ask the lawyer how often and under what circumstances you will hear from them. You’ll want to know how your case is coming along and about other important dates. Making sure everyone is on the same page is key to a successful attorney-client relationship. Finally, what is the likely outcome in my case? You are not looking for the “right” answer, just an honest one.
Experience is an obvious answer to this question, but a broad range of experience in various areas may prove particularly useful, depending on the needs of the business. Anyone can form a business; the question is whether the attorney can walk you through the strategic choices that come along with forming the business and getting it best positioned for growth and success.
Another question to ask is whether the attorney or the attorney’s law firm can meet all the needs of the business. For continuity and simplicity, a business may want to utilize one law firm for all its needs (corporate governance, intellectual property, tax, real estate, etc.). A full-service law firm can meet more needs.
The prospective client also should look for any value-added information the attorney or the attorney’s firm may provide. Some law firms offer news articles and informational blogs and seminars that can aid a business without the business incurring additional expense.
The most important questions to ask are: “Has this attorney ever been in the courtroom and won a case like mine?” and “Does this attorney have the experience to know the law and help me in my crisis?”
If you’re thinking, I need some advice; I’m not sure what to do
, chances are an experienced attorney has encountered the very situation you’re in many times. It might be new to you but it’s not going to be new to an experienced and capable attorney.
I’ve had hundreds of clients over the years who have never been in a courthouse… until the first day they are. They have never been interviewed under oath by a police officer or deposed by another attorney… until they are. These are moments of grave concern to people. They’re scared. They don’t know what they can and can’t say. They’re unsure about how to exert or protect their rights.
One way to think about it is analogous to a doctor that is in the ER every day. Chances are, the doctor has delivered hundreds of babies or stopped the bleeding caused by a gunshot or a bad injury. They see all kinds of crises and emergencies. Once they do it thousands of times, they know how to treat the patient, no matter what the problem might be. But the mom having the baby only goes through that once or twice (maybe more!).
And in many ways, legal crises and medical issues are similar. We do it every day. The fact that you’ve never been in a legal situation means you’re not equipped or experienced to really know what to do. You need help and you need a competent and experienced attorney to help you.
Do I need a will? A will offers you control over your estate. For clients with minor children, you can appoint a guardian for the minors in a will. Without a will, North Carolina’s intestacy laws determine who can inherit from you and how much that person could inherit. Unfortunately, intestacy laws may not match your objectives.
Do I need to update my existing will? While a will does not generally expire, your circumstances may have changed. You will likely update a will in these situations: you moved to another state; your family circumstances changed due to birth, death, marriage or divorce; your assets changed substantially; you or your spouse’s physical health changed; or you have other changes in mind.
Do I need a Revocable Living Trust? Revocable Living Trusts are often used to avoid public probate of your estate assets or the costs of probate. These trusts can provide flexibility for tax planning. Revocable Living Trusts are beneficial for out-of-state properties. Your family circumstances, such as remarriage, may benefit from a Revocable Living Trust.
Do I need a Durable Power of Attorney? Every adult should have this important document. It allows you to appoint someone to engage in financial transactions and decisions if you are unable to do so. This document is critical for long-term care planning if you cannot plan on your own, and may avoid the need for a court-appointed guardianship.
Do I need a Health Care Power of Attorney? This document offers you control and peace of mind. You can appoint individuals to make decisions for your health when you are unable to do so. You can also make decisions about end-of-life care. Without this document, the people you trust most may not be able to make health decisions for you or your wishes may not be honored.
What if I have existing estate planning documents from another state? Find an attorney in your new state to review your existing documents. In North Carolina, you can probate an out-of-state will, but your executor must file proof that the will was executed in accordance with the former state’s laws.
Are my life insurance and retirement plan beneficiaries consistent with my overall estate planning objectives? This answer ensures your estate goals are achieved, even with assets that pass outside of your estate.
Once you find an attorney you feel comfortable with, you should ask them how much experience they have with the legal issue you are presenting them. You also want to know if they teach CLEs (Continuing Legal Education classes for other attorneys) on the subject to determine if they really are knowledgeable in the field.
How can a client prepare for meeting with an attorney?
Bring important documents. You will receive the most accurate recommendations when your attorney has reviewed your existing estate-plan documents. Also, bring any business documents, including partnership agreements, stock purchase agreements and life-insurance or long-term care insurance policies.
Know your assets and liabilities. Your attorney will ask you about your assets, your liabilities (if any) and the estimated value of each. Know whether these are jointly owned and the beneficiaries of these assets. For long-term care planning, identify any gifts or transfers within the previous five years.
Know who will serve in important roles. Identify trustworthy individuals or entities who can serve as agent in your Durable Power of Attorney, your agent in your Health Care Power of Attorney, and your executor of your will or trustee of your trust. If you have minor children, you will need to appoint a guardian. Be sure to identify others who can fill these roles if the primary appointees cannot.
Know who will be affected by your estate plans. Offer the names and contact information for the people or entities you wish to name in your estate plan. If you are seeking to exclude certain relatives, provide that information, as well. Be prepared to openly discuss all your family members and your relationships with them so your attorney will understand your goals.
Some clients have children who are dependent on alcohol or drugs or children with pending divorces or creditor problems. Some children with mental or physical handicaps have their own special needs that require specialized planning. These needs can be addressed in your estate plan.
Share your idea of how the estate plan might look. For clients with minor children, identify a certain age or milestones you want the children to meet in order to inherit from you.
Write down questions. It is easy to become overwhelmed when you meet with your attorney. Bring questions so you can address those concerns. Bring an open mind. Many clients think they only need a will. Your estate planning attorney will ensure you are adequately protected by documents that will fit your unique needs.
Research the attorney before you schedule an appointment to check his or her ratings, reviews and experience. Do not take a chance on your attorney. Picking the right one could make all the difference in your case.
If you find yourself or your company in a crisis, the first thing you should do is get some help – someone to stand with you, who can see clearly through the smoke and hysteria that often engulfs you at the early stages of an unexpected event.
In these chaotic moments, clients need counsel who can recommend a calm and steady course. The first few decisions made after a crisis erupts are the most critical. I have been in boardrooms and courtrooms when the bullets were flying and have learned how to approach every crisis with measured decision-making.
Crisis can be anything from realizing that a family member is in trouble, a business client is suing, or an unforeseen criminal investigation is at your doorstep. No matter what it is, having experienced and capable advocacy at your side is paramount.
Preparation will vary based on the stage and needs of the business. I work with a number of start-ups, and they do not know what they need yet. That is okay. I can guide them on getting started, with entity formation and tax structure being an initial conversation. Getting it right on the front-end can be a tremendous cost savings.
When a group of individuals is looking to form a new business, it is important to establish the attorney’s role with that business. If the attorney represents the business, the attorney typically should not be representing one owner against another. Alternatively, if the attorney is representing one owner, this is fine, but the attorney will pursue that individual’s wishes, not the wishes of all owners in the business.
It is important to establish these parameters at the outset so no one is confused about the attorney’s relationship with the business and the owners.
Participation by an accountant in the early stages of business formation also can be important. We encourage this type of collaboration to help owners make the right decisions from the start.
As you can imagine, the information needed will vary dramatically based on the nature of the business.
First, a client should come prepared to be honest, open and ready to tell the attorney all the facts, including the embarrassing ones. None of my clients are perfect and they generally have done something wrong that got them to this point. I need to know the truth.
Second, do not bring children or additional resources to the meeting because it harms confidentiality.
Finally, bring any and all documents you have received, including letters, pleadings and financial disclosures. The more information the attorney has, the better they can advise you on what the actionable steps should be.
If you want your attorney to prepare you for what lies ahead in your case, please come prepared with all documents and information related to the matter. And always be honest with your attorney. Be prepared to answer direct questions as the lawyer formulates theories that would best serve your case.
What issues do you frequently see that could have been prevented through legal counsel?
Corporate recordkeeping mistakes and tax compliance failures are often spotted when we get involved with a new business client. The failure to treat the business appropriately for tax purposes can be a nightmare scenario for a company and for its owners.
We also occasionally see companies that are excluding minority owners from participation, intentionally or unintentionally. Minority shareholders and members of limited liability companies with small membership interests have certain established rights at law and/or by agreement. Accidental or intentional disregard for those rights can cause headaches for company leadership and can result in litigation that is damaging to the company.
Internal business disputes involving owners operating without a shareholder agreement or without an operating agreement are troubling, but we see these disputes entirely too often.
An ounce of prevention could prevent a pound of cure here, as operating documents for the business easily could include buy-sell provisions that allow for one owner to buy out the other, instead of having the owners engage in an endless internal struggle for control.
In separation and divorce cases, if the party had come into my office when the threat of separation was just starting, they would have received the information necessary to ensure they had the ability to plan and be financially sound, versus worrying moment to moment how the bills will be paid.
In custody cases, having ongoing legal counsel, even for a phone call, would cut down on conflict and allow a client to know when they have an actionable issue or when they need to de-escalate.
In any business encounter or interaction with law enforcement, it’s always a better option to be represented by someone who knows the law. A sub-optimal choice is for people to go it alone and make mistakes that may lead to further trouble down the road.
On many occasions, I have been able to intervene on behalf of clients whenever a crisis has erupted and have been successful in avoiding further damage by early intervention on their behalf.
Business owners can become preoccupied with running their business and generating profits, and sometimes risk management gets overlooked.
Having legal counsel on retainer can benefit businesses by helping them stay up to date on rules and regulations affecting their business, reviewing employment practices and handbooks to ensure all federal and state guidelines and best employee practices are being followed, and spotting legal issues, so you are avoiding a problem, not reacting to it after the fact.
All businesses obviously cannot afford this type of active attorney involvement, but even with small businesses I recommend a legal consultation in the beginning to discuss issues and make sure all I’s are dotted and T’s are crossed.
Annual reviews. I always encourage clients to meet annually to take a proactive approach to planning. I can review their existing plans and learn whether there have been any changes in their circumstances or the laws that might require revising their plans.
It is far easier to address changes when there are no urgent circumstances and the client has the capacity to make changes. Plus, I enjoy seeing my clients and strengthening my relationships with them.
Failing to update estate plans when there are changes. While I would prefer to meet annually with my clients, the worst outcomes occur when clients fail to address significant changes in their circumstances.
My general rule for seeking legal estate recommendations turns on three simple things: changes in the family; changes in health; and changes in financial circumstances. If any of these changes occur in a client’s life, I want to meet with the client to ensure their needs are still adequately protected.
Online wills and “DIY” legal work. Usually, people aim to save money by doing this work themselves. However, people cannot always guarantee the document they drafted contains all the necessary legal provisions to meet their estate planning objectives.
I review a lot of wills that people draft for themselves, and these documents can present a host of unintended legal challenges for their loved ones to deal with after the person has died. Sometimes, the meaning of certain words can be interpreted differently by different people. In many cases, the documents from online programs are not state-specific and may not address the particular laws of your state.
Further, these DIY documents lack the personalized legal recommendations you will receive from an attorney with knowledge of the laws in your state based on your specific needs.
With a chuckle, I often tell clients that I embrace these online will programs and DIY legal work because these documents lead to a robust legal practice.
What legal advice do you have for married couples who enter into business together?
This is right up my alley and in my area of law. I would first tell them to ensure the business is correctly created as a business entity under North Carolina law.
Next, each party should have their own unique tasks within the business and not be accountable to each other, but a separate entity.
Finally, they need time away from each other – because absence does make the heart grow fonder. Even an hour away a day can save a marriage.
I referred this question to my colleague, Rebecca Knudson, who focuses on business law. “Prior to starting the business, it is important for the couple to discuss each other’s expectations in managing and operating the business. Most of the problems that result from married couples owning a business together occur from each spouse having different expectations about the other’s role in the daily operations of the business.
Many of these problems could have been avoided if the couple had discussed and developed a specific plan for operation and management of the business in advance.
As with any business, designing and implementing a thorough succession plan as early as possible is extremely important.
A married couple needs to discuss what they want to happen to the business if one or both die or become disabled.
Frequently, couples assume that another family member will step in to help or even take over the business in those circumstances, without specifically evaluating whether that family member is equipped to run the business and discussing with their family member if they have any interest in taking over the family business. Dividing up the assets of a business between heirs can be particularly difficult, especially if the heirs do not agree on how to continue the business operations.
Having these conversations with family members in advance can help avoid future business interruptions and disputes.
It is also important to make sure the business succession plan is consistent with estate and financial plans the couple already has in place. Often, starting a business requires a couple to modify their estate plan.
Additionally, it is important for the couple to discuss their retirement plan and evaluate how the business will affect or further that plan, especially if they intend to generate income from the business during retirement.”
Do not do it. Ha ha. Seriously, though, going into business with your spouse can be one of the most satisfying things you do, but it is important to make sure you set ground rules. This is more of therapy advice than legal advice, but the number-one tip would be to agree on the division of labor upfront and keep it professional at work.
From a legal perspective, I recommend – but rarely see – post-nuptial agreements that spell out what happens in the event of a divorce. Savvy business owners include plans for what happens if a partner dies or wants to leave the partnership in their business formation documents. Married couples in business together are wise to make the same plans.
You need a buy-sell provision in your company documents, which will enable one owner (here, a spouse) to be bought out upon certain triggering events (divorce, bankruptcy, etc.) or upon request of the other owner.
We can craft these provisions to make it compulsory, where if one owner requests to buy out the other for a certain price, the non-offering owner instead can take steps to buy out the offering owner, thus giving some protection against gamesmanship of one owner forcing out the other on unexpected terms.
However, these buy-sell provisions in a shareholders agreement for a corporation or an operating agreement for a limited liability company can avoid a situation in which the spouses are stuck with each other following a divorce. We regularly include these buy-sell provisions in company documents when a company has multiple owners, regardless of any marriage.
Also, your estate planning documents should contemplate the continuation of the business if something happens in the marriage. Give consideration to how the business will move forward with just one spouse involved.
What can happen to a business jointly owned by a couple that did not create a prenuptial agreement?
My colleague, Rebecca Knudson, answered this question by saying:
“Unfortunately, most businesses jointly owned by a married couple do not have a proper plan in place in the event of a divorce. As uncomfortable as the topic of divorce is for couples to discuss, failing to develop a plan in advance for this possibility can be financially devastating to the business and its owners and can even result in the failure of the business.
Most disputes that occur when business owners divorce could have been avoided with proper planning. Businesses can develop a specific plan for division of assets upon divorce in the company’s operating agreement, which will frequently include a specific method of how to value the business, the process in which one spouse can purchase the other spouse’s share of the business, and who will be responsible for the operation of the business until the divorce is finalized.
Married couples with prenuptial agreements can encounter the same problems during divorce. Even with a prenuptial agreement in place, the division of marital property upon divorce can be very complicated, especially when there are jointly owned business assets involved.
While a prenuptial agreement may dictate how marital assets are generally divided upon divorce, it may not be specifically tailored to the needs of the business and is not likely to provide for a specific plan for management and operation of the business while the couple is divorcing.
If there is not a proper plan in place and the couple disagrees, the court will have to determine how to divide the business, which can result in years of litigation to the financial detriment of the business and the couple.
Don’t let personal strife negatively impact the performance of the business. Plan for that possibility on the front end and buy-sell mechanisms can be a solution.
If a couple is going through a divorce, and the company documents have not prepared for some separation process among the owners of the company – married couple or otherwise – then litigation may ensue. A receiver could be put in place for the company in certain situations, and a receiver would run the company under the oversight of a court. A dissolution action could be filed to dissolve the company, too.
If the case was created during the marriage, then it is subject to equitable distribution. If the parties cannot agree on a value, usually they will each hire a business evaluator to determine the value.
However, sometimes we see one spouse being forced out of the business in hurtful ways. It is important that the parties try to remember that the business supported their family and try to salvage all the value in the business and keep it running smoothly despite their plan to separate.
When a couple goes through a divorce, assets and liabilities are split through a process called Equitable Distribution, which means a court will classify property as either marital or separate, place a value on the property, and then distribute the property between the spouses. Some types of property, however, are more difficult to distribute than others, like an ownership interest in a business.
Three methods are typically used to split business interest: a buy-out, coownership or the sale of the business. All these options have their difficulties, and what a couple decides is dependent on the situation in each case.
Divorce is never easy, and it can be especially difficult when a jointly owned business is involved.
How can an attorney help manage financial security?
The cost of having an advocate by your side is always, at the initial stages, a concern for everyone. They must weigh that cost with the likelihood of what it is they may lose down the road.
A good example is the cost of retaining counsel to do battle for you in a courtroom. In a recent case, we prevailed on behalf of the client in a contested court hearing, and the small investment he made in hiring us saved him half a million dollars, had he lost the case. To state the obvious, his decision to have aggressive and competent counsel was a good investment.
When a crisis erupts, I can see clearly through the smoke. My advice is not influenced by emotion, worry or anxiety. We focus, instead, on facts, North Carolina law, and the strategy necessary for clients to prevail.
And that’s really where the financial investment becomes a secondary consideration. When people go it alone in a situation with a business partner, criminal investigation or disagreement of some kind, often they inadvertently make bad decisions because of emotional attachments, anxiety, sleep deprivation, etc. These unhelpful influences often conspire to lead people to make poor choices and decisions at critical times.
Having someone there to guide and help you and be your spokesman and counselor often has a value that is difficult to quantify.
Choosing the correct legal entity for a business can have a tremendous impact on personal asset protection. Maintaining the corporate formalities (recordkeeping, accounting, etc.) also can guard against an argument that the corporate veil should be pierced to get to an individual owner’s assets.
We regularly receive calls from clients who ask what can be done to protect them or their family because the client is involved in a business dispute, has just been sued for malpractice, or owns rental property where someone was injured.
The best time to address these risks is in advance of a lawsuit or claim. In some cases, there are simple steps that can be taken in advance. Planning regarding the ownership of assets may offer protection. For example, if North Carolina real property is owned by spouses as tenants by the entirety, there is protection from a creditor of just one spouse – but not from a creditor of both spouses.
In some cases, a limited liability company can be created to hold certain assets. For estate planners, limited liability companies often serve to reduce estate taxes and transfer assets in an orderly manner to the next generation.
In addition, assets in a limited liability company are often out of reach to creditors of an individual owner, as the creditor only can get a charging order to receive any distributions out of the company. And in some cases, more complicated asset protection strategies are employed, such as lifetime trusts for a spouse, domestic asset protection trusts and offshore trusts.
When dealing with financial security and long-term goals, each case is different, so meeting with that client one-on-one is imperative.
When someone comes to me intending to separate, there are so many ways my office can be helpful. For example, there is the need to determine cash flow needs to ensure all the bills get paid. This may mean that we must calculate child support and/ or alimony or determine how a business income will be distributed. Clients with a business have so many moving parts in their lives that each moving part must be managed and guided.
I asked my colleague, Rebecca Knudson, this question and she said: “Even the simplest business succession plans involve significant legal and financial decisions and can take a significant amount of time to develop and implement. An attorney can advise you on the laws affecting your business and can work with you to develop and implement a business succession plan that will minimize disruption to the business.
An attorney can also collaborate with your financial and tax advisors in developing a comprehensive business succession plan that can allow you to avoid negative tax and financial consequences and further your personal and professional goals.”
What advice do you have for protecting finances in retirement?
This question arises the most in gray divorces. When parties have long-term marriages and are divorcing in their late 40s or later, the retirement assets and real estate generally form the majority of their estate. Managing these assets and ensuring they are divided equitably and with an eye on both parties still being able to retire “on plan” is vitally important. My best advice is not to try to transfer retirement assets yourself and seek attorney assistance.
My strongest advice to nearly every adult is to arm yourself with a Durable Power of Attorney that has been drafted by an elder law or estate planning attorney.
This powerful document has the potential to protect your life savings from being drained by long-term care. Having this document in place before you need it is essential because most people cannot predict the day they will become incapacitated.
There are strong benefits to having a comprehensive Durable Power of Attorney in place, including:
• You retain the ability to choose a person who will make financial decisions for you.
• You avoid the necessity of a guardianship or conservatorship. Sometimes these public court proceedings can be financially costly and emotionally taxing on family members. The court-appointed guardian may not always be the person you would have chosen to manage your affairs. Once appointed, a guardian will have to obtain court approval before conducting significant financial transactions and may not be able to protect your assets in the same way an agent in a Power of Attorney can.
• You can outline your wishes and expectations of your agent. A written legal document can prevent questions from family members about your intent.
• You can grant specific and powerful authority to your agent to plan for long-term care, choose care providers, and apply for programs to defray expenses for care. With a well-drafted Durable Power of Attorney, you can protect your assets and finances through gifting, certain asset-protection trusts and other kinds of transfers.
• You can prevent delays in asset protection planning by having a document already in place.
• You can protect your agent from claims of financial abuse and exploitation. While every person’s circumstances differ, this relatively inexpensive, yet very powerful, document can help you proactively plan for your future and protect your finances when you are unable to act for yourself.
What is the best way to manage the cost of legal services?
In all honesty, legal services are often unexpected. Many people are forced to place legal fees on a credit card, borrow from family, or take funds out of savings.
However, if you know a separation is in your future because you are planning for one, have a consultation with an attorney. Once the attorney advises you on cost, you can determine the best way to save for the eventuality. I would also recommend a law firm that charges fixed or flat fees, so you can understand the expense in advance.
Be candid about your goals for a project, and the attorney will be candid about the cost. Have these conversations. We seek to find alternative fee arrangements that work for both the client and the law firm.
In some instances, the costs may be a flat fee based on the work being a project with a known cost. Some projects may be too open-ended to make any total cost projections, and you need to decide if you are comfortable with that uncertainty.
Attorneys can project the costs in certain situations, but it may be possible to move through a project in stages, so the client can see the cost in segments as the project advances. In other instances, the costs will be dependent on how the client handles the project, such as items requiring significant back-and-forth with the client.
In those situations, clients can manage their costs by being strategic in structuring the exchanges with the attorney, such as limiting the line of communication to only one board representative or employee who gathers the comments or questions of a group.
Conversations with your attorney about cost management and budgeting should be a part of the dialogue.
Have an idea of the goals you are seeking and ask for referrals from people you trust. Prepare to pay for an initial consultation if you are seeking legal advice specific to your circumstances. At the consultation, you and the attorney can discuss your needs and review important documents, and you will receive personalized recommendations from the attorney.
A good attorney will properly set your expectations of the nature of the case and estimated fees. At the initial consultation, ask the attorney about the fee structure and costs for the legal services he or she recommends. You may be surprised that some attorneys are willing to negotiate a fee structure that will accommodate your needs, but be prepared that some costs cannot be negotiated.
If you retain an attorney, review the engagement agreement carefully for the obligations expected of you and be sure to follow those obligations. Be sure to communicate any concerns about the legal services performed or the costs incurred as soon as possible.
Always talk about it up front, right at the beginning. It’s always a better policy to ask questions and get advice on the front end - How long will this take? How much will it cost me? Are there different phases of expenses I need to know about?
Any seasoned experienced lawyer, within a matter of 20 to 30 minutes, is going to be able to give you a pretty good opinion about your case, what you’re facing, and the expenses associated with it.
Most of the time, lawyers are going to have that conversation free of charge; not always, but most of the time… with us, for example. You can pick up the phone and call and after we get the gist of what you’re facing, we can tell you how we can help and approximately what that’s going to cost. Then, you have more information to make a decision.
Every case is different. It’s just the better policy to ask questions, have a good in-depth conversation with an experienced and tested attorney, and just see where it goes.
Do people need counsel when engaging with insurance companies?
Insurance companies know contract law front and back. They know the coverage they provide and how to get the facts they need to protect their insureds’ interest. More often than not, they are recording your conversations and collecting evidence from you – not necessarily to use for your benefit, but theirs.
Whether you are looking to file a claim on your own policy or against someone else’s policy, if you try to go it alone against an insurance company, you are at an extreme disadvantage.
If you’re against an insurance company and trying to find out information about someone who has caused you a problem – whatever the claim may be – the ethical and fiduciary obligations that insurance company has are not to you; they’re to the policy holder. While they certainly cannot commit fraud, they have no affirmative duty to cooperate with you. An experienced lawyer will know how to go about advising you on what the claim may be, how to get information and so forth.
Now, if it’s your own company, you have a duty to cooperate with your insurance company and they have a contractual duty to cooperate with you. But it’s still a better decision to have an attorney who can short circuit the conversation about whatever the claim is that you may have with your own insurance company.
Who does a business’s attorney represent?
A business’s attorney represents the business, not the employees or owners.
The exception would be a sole proprietorship, where the business and the owner are the same. However, we immediately would recommend a different business structure for a variety of reasons.
The root of this question goes towards inquiring who the attorney will take direction from in giving legal advice. The business’s attorney will take direction from the leader or leadership team of the business.
In a limited liability company, it will be the manager(s) or the member(s) of the company, depending on structure, and while these roles often are filled by the owners, they do not have to be the owners. In a corporation, the attorney will take direction from the board of directors, and the attorney usually will receive the board’s direction from the president of the corporation or some other designee from the board.
At all times, the company attorney’s duties go to the company, not to any one individual. But the company’s leaders direct the company and all persons affiliated with it, including giving direction to the attorney. BRISSON:
It is always important to keep in mind that businesses are separate and distinct legal entities from their owners. When a lawyer is representing a company, the general rule is the client is the company itself.
However, the company necessarily acts through its authorized officers and employees, and the line between the company and the individuals can sometimes be easily blurred in practice.
When representing a business entity, lawyers can easily fall into the trap of assuming the interests of the client (i.e., the company) are the same as the interests of the individual officer or employee. Normally this is true, but not always.
If a conflict arises between what the officer or employee claims to be best and what actually is in the best interest of the company, it is the lawyer’s responsibility to put the client’s (business’s) interests first.
It really depends on the facts giving rise to the potential dispute. If an employee is a witness in an investigation and is being interviewed, then it’s certainly permissible for an attorney to represent the employee and the business because their interests are potentially aligned and there is likely no conflict of interest.
If, however, it is a matter of an employee that might have some claim against the employer, then the business attorney would certainly be conflicted. He or she would have to choose to represent the business or the employee but, in some cases, not both.
An experienced attorney is going to know very quickly which questions to ask and will be able to get to the heart of the matter, so he or she can begin dispensing valuable advice immediately.
We use the word, “crisis” – not everything that requires legal counsel is a crisis, but by its very nature, if you’re calling an attorney, you’re not sure which direction to step. People in these moments need answers from someone who knows the landscape.
As it relates to employees and employers, workplace events, criminal investigations or unforeseeable events, the better policy is to pick up the phone and begin asking an experienced attorney questions. And that attorney will know, in turn, what questions to ask you, facts to seek and advice to give.
I can’t tell you how many times in my career when a 20-minute phone call at the front end would have saved countless hours, money and angst for the client. Often, people decide to figure it out on their own or not worry about it and it festers and gets worse. Then, you’ve caused a larger problem down the road that often costs more money than it would have at the front end.
An ounce of prevention is worth a pound of cure, as the saying goes. It really does apply at the front end of the situation, where you think you need help or need to call or meet with someone who can give you good advice.