|Hiring an Attorney FAQs|
What is a Lawyer?
A lawyer is a member of your community who has been licensed to practice law. That right to practice, which is granted by the Montana Supreme Court, is your assurance that he or she has been found qualified to represent you properly. To practice law in Montana, all attorneys are required to be members of the State Bar of Montana. To be admitted to the Bar, they must complete college and graduate from an accredited law school, pass a comprehensive examination given by the Board of Bar Examiners, be of good character, and pledge to uphold the Constitutions of the United States and the State of Montana, and to discharge their duties as an attorney to the best of their abilities. As a member of the Bar, attorneys must regularly attend "continuing legal education" seminars on various aspects of the law. This helps the stay up to date on the law, so that they may better serve their clients. A lawyer is first and foremost an officer of the court, authorized to explain and interpret the law for you, and to represent your interests both in and out of court.
When Should I See a Lawyer?
Legal assistance is highly desirable and often indispensable in many other situations in life which may have nothing to do with crime or a court action. In many instances, the best time to see a lawyer is not when you are in legal trouble, but before that trouble occurs. Never think of a lawyer as a "last resort." Preventive law is one of the most valuable services a lawyer can perform for you. Like preventive medicine, it seeks to eliminate potential problems. Preventive law can also help you save money. Costly legal problems can often be avoided by ironing out the legal wrinkles in advance. Having an attorney draw up important papers can spare you from unwelcome problems later on.
Some of the situations in which you should consult a lawyer include:
When Your Status Changes. Coming of age, marriage, the birth or adoption of children, and moving to a different state may result in new or different legal and personal responsibilities. This may also require changes in the way you conduct your business or financial affairs. Your lawyer can help you plan for and meet such obligations, including the preparation of various legal documents that might be required.
When You Make or Revise a Will. The planning and drafting of your will is an important legal matter. In drafting your will, your lawyer can plan your estate in a way that will be most beneficial to you and to those for whom you wish to provide. Your lawyer can suggest proper methods which may provide substantial savings in taxes and other estate costs.
When You Buy or Sell Real Estate. Whenever you buy or sell real estate, you should have legal counsel. A real estate broker may be most helpful in putting the transaction together, however they may not prepare certain necessary documents nor give proper legal advice as often as needed. There are potential legal pitfalls in the buying or selling of any real estate which can be avoided only by one with knowledge of the laws relating to real estate, taxes, insurance, contracts, and other related subjects. Your lawyer can protect you from such pitfalls.
When You Enter Into Any Contract. Any agreement, oral or written, which involves a consideration (the exchange of something of value in return for some goods or services) may be binding and enforceable. As a general rule, oral agreements should be avoided, and written agreements should be either prepared or examined by a lawyer on your behalf before you sign them, especially in an agreement representing a major financial obligation.
When You are Involved in an Accident. If you are involved in an accident of any kind resulting in personal injury or property damage, you should consult with your lawyer. He or she can help you protect your rights and should be contacted immediately so that proper action can be taken. In addition, you should notify your casualty insurance company immediately.
The law exists to protect your rights but, more often than not, you must take definite action to make those laws work for you. Your lawyer is prepared to protect and enforce your rights under the law in all of your personal or business affairs.
How Do I Find A Lawyer?
In selecting a lawyer, the consumer should take the same careful steps that one takes in choosing a physician or a dentist, or a home contractor. If you do not know a lawyer, ask friends, neighbors, or others whose opinion you respect for a recommendation. You may also contact the Lawyer Referral and Information Service sponsored by the State Bar of Montana at (406) 449-6577 or on our website under the “Need Legal Help?” menu. This service is a free, non-profit service offered by the State Bar of Montana. It’s an outstanding resource when you feel you need an attorney but you’re not sure who to turn to. Each year, LRIS staff handles thousands of calls from the public, assisting with various legal situations and providing information, resources and referrals.
What Type of Case Do I Have?
The best way to know what type of case you have is to speak directly with a lawyer. Here are a few case categories that may help you narrow it down:
Accident Cases. Lawyers are prohibited from instigating or financing litigation. However, to avoid the old English system of making the lawyer available only to the rich, lawyers in the United States are permitted to accept employment in the handling of claims where their compensation will be paid only from recovery made in the case. If there is no recovery, the lawyer gets no fee. The client, in any event, must pay the court costs and certain other expenses, such as those for expert witnesses. This fee arrangement, as previously mentioned, is called a "contingent fee." It is most commonly used in personal injury claims. Such fees range from 25% to 50%, depending on the nature and type of case involved. The percentage agreed upon usually depends on the probability and amount of recovery. No lawyer is required to accept a case on a contingent basis. This is a matter of agreement in each case between the lawyer and the prospective client. This agreement should be in writing and should be made at the time the lawyer agrees to handle the case. Both the client and the lawyer should have copies of the contingent fee contract.
Wills and Estate Planning. A client may want a simple will or may require a more comprehensive program of estate planning involving insurance, investment, home and business ownership, and various other complicated details. In either will or estate planning, the lawyer must make inquiries into the nature of the client's assets, personal and family situations, and individual desires. The amount of time that is required (and the lawyer's fee) is largely determined by the size of the estate and the complexity of the questions involved. In the simplest situation it would cost relatively little to have a will drawn by a lawyer. In situations where the lawyer might spend more time and resources working on a complex will or estate plan, the fee would be substantially higher. In either case, the benefits to be gained are well worth the investment.
Probating an Estate. When a person who owns real estate or personal property dies, with or without a will, then the estate might have to be "probated." Maximum fees for the lawyer's service in these cases are set by Montana law, and are based on a fixed percentage of the amount involved. A judge may allow additional fees in cases where extraordinary work and problems arise.
Dissolution of Marriage. The legal problems involved in dissolution of marriage proceedings vary greatly. In some cases, they are relatively simple. Other cases can involve difficult legal problems having to do with custody of children, financial settlements, the division or dissolution of property, and many other factors that may seriously effect the future lives of a number of people. The time and effort required of an attorney in a dissolution of marriage case, and therefore the fee, will vary greatly from case to case. In instances where a client cannot afford to pay their attorney, the court may order one party to pay the other party's fee. However, if the designated party does not pay the fee, the other party may still be obligated to pay the attorney.
Advice and Counsel. When a lawyer charges for "advice" it does not mean an off-hand personal opinion. A lawyer's advice is a conclusion, based upon years of training and experience, reached only after gathering and analyzing the facts after hours or days of research and study of the law. Such advice and counsel is usually charged for on an hourly basis.
What Types of Fee Arrangements are there?
The three most commons types of fee arrangements are:
Time billing is when the client is charged for the amount of time the lawyer and their staff spend on the client's case. Time billing is the most common form of fee arrangement.
Contingent fees depend on the outcome of the case. This means that the attorney is paid a fee out of the proceeds collected on the client's behalf. This type of fee arrangement is most common in cases where the client has been injured, but is sometimes used in other cases. Attorneys are not allowed to have a contingent fee arrangement in most family law matters.
Flat rates are sometimes used in instances where the client is faced with a relatively well-defined problem, and the attorney can estimate, in advance, how much time and effort is likely to be required. With a flat fee arrangement, the client and attorney will agree upon a single, final price for the case before any work is done. Flat fee arrangements are most often used in uncontested divorces, incorporation of small businesses, simple wills, and simple bankruptcies. Where there is a significant amount of disagreement, or a complicated situation, it is usually not possible for the attorney or the client to know in advance how difficult the problem will be.
In any type of fee arrangement, it is common for the attorney to require an advanced payment for some fees and expenses. This is often called a "Retainer."
How do lawyers set their fees?
The Rules of Professional Conduct, which govern the conduct of lawyers, provides guidelines to be considered in setting legal fees. Among these include:
The Rules of Professional Conduct also point out to lawyers that the legal profession is a branch of the administration of justice, and not merely a money-making trade.
In certain types of cases the court may impose a statute or award attorney fees and costs when one party is successful. These are most often wage claim cases or civil rights cases (filed under the Equal Employment Opportunity Act or the Americans with Disabilities Act.)
Attorneys will usually take the following factors into account when charging clients:
Time and Effort. Lawyers will keep accurate records depicting the time that they, other lawyers, and sometimes office staff, spend on your case. Different attorneys value their time at different rates based upon their experience, subject knowledge, and skills. There is, however, a degree of uniformity based on what other lawyers in the community charge.
Ability, Experience, and Reputation. The ability, experience, and reputation of the attorney you choose are going to have an effect on the fees that you may be charged. If you lawyer has the reputation of being an expert or specialist in a specific type of law, then the attorney may charge you more than a lawyer with less experience in that field.
Frequent Clients. Your lawyer will likely take into consideration how frequently you have utilized their services. Similar to other businesses, Lawyers may reduce their charges for clients that they have worked with on numerous occasions.
Other Considerations. As with any other professional service, an attorney must consider office expenses and overhead. An attorney's effort is supported by the efforts of a variety of others. The fee arrangement can include separate charges for secretarial, clerical, and other assistance.
What questions should I ask from a lawyer before I chose to hire one?
What should I do when I hire an attorney?
Agree, possibly in writing, on the services to be provided and the fees to be charged. If you agree on a contingent fee, the fee percentage should be stated. If you agree to fees based on hourly or other unit rates, the rate should be stated. The cost for litigation is often stated in a “retainer agreement.” However, you should recognize that some legal matters become more complicated and expensive than originally anticipated. You may discuss and bargain the proposed fee and the rate or percentage of the fee.
Make sure that you understand when you can communicate with your lawyer, whether by telephone, or personally in the office. Ask the names of other persons in the law firm who will be handling specific phases of your matter, such as the drafting of papers, court appearances, trial or appeal.
Keep a calendar, or log, of all contacts with your lawyer's office, with dates and time spent discussing your case or other legal matter.
Ask for a monthly billing for legal services and other expenses. If you dispute any of the charges in a bill, discuss them with your lawyer immediately.
Get dated and signed receipts for all money paid to your lawyer or law firm, and the purpose of each payment.
Ask your lawyer to send you a copy of all correspondence sent or received on your behalf, as well as a copy of each legal paper, or legal pleading. It's well worth the cost of postage and photocopying. If you're dissatisfied with any documentation, discuss it immediately with your lawyer.
NEVER sign blank documents, receipts or checks on bank accounts.
NEVER sign a power of attorney, or retainer agreement, that authorizes someone to endorse or cash a check that's payable to you unless it's absolutely necessary.
It's important to keep your lawyer informed of your position and status, and for you to be informed, by your lawyer, of the progress of your legal matter.
Remember that a law client has a "professional" relationship with his or her lawyer. In that relationship, the lawyer is obligated to serve as an objective legal adviser. Clients and lawyers should avoid romantic, personal, business or social situations that can damage that objectivity, and the truthfulness that's required in a professional relationship.
What if I disagree with my attorney about my case?
As a client, you are responsible for setting the objectives of the representation, unless the objectives are illegal or unethical. In a civil manner, the client decides whether to accept an offer or settlement. In a criminal matter, the client decides what plea to enter, whether to waive a jury trial, and whether the client will testify.
The lawyer may be more equipped to make decisions regarding the procedural aspects of the case. That is, how the case progresses to get the result you want.
What if I disagree with my attorney about the fee I was charged?
If you disagree with your attorney about the fee you were charged, you may contact the State bar at (406) 442-4660.
What if my attorney is not communicating with me?
You may want to talk to your attorney about what communication you can expect. It may take an attorney multiple days or weeks to return communication. If your attorney is not returning your communication promptly, it may be that there is not a upcoming deadline or change in the status of your case. If you are concerned by your attorney’s lack of communication, send your attorney a letter. Keep a copy of any written correspondence and write other communication on a calendar.
Always be courteous to the attorney’s staff. If you write your attorney a letter or if important deadlines in the case have passed, you may consult another attorney about the problem and consider filing a complaint against your lawyer with the Office of Disciplinary Counsel.
What should I expect from my attorney?
When you hire an attorney, you can expect:
What Should I Tell My Lawyer?
It is absolutely essential that you provide all of the facts relating to your case, both favorable and unfavorable, to your lawyer. Your attorney won't be able to properly advise and/or represent you without you being completely candid with them. Your lawyer, however, must still be loyal to the administration of justice which means that he or she must not resort to any illegal or unethical tactics and must remain truthful.
Is What I Tell My Lawyer Confidential?
A lawyer's professional relationship with a client is similar to that of a doctor or clergyman. Your attorney (without your consent) may not reveal anything you have said in confidence in the course of that relationship. No court or other authority can force a lawyer to do so.
What are the limitations of the lawyer-client relationship?
A client cannot ask a lawyer to violate the law, act unethically, take unreasonable or arbitrary positions against your lawyer's professional judgment, or do anything repugnant to your lawyer's own sense of honor and propriety.
A client also cannot demand that your lawyer endorse your political, economic, social, or moral views or activities.
How can I hold down my legal fees?
What do I do if I have a complaint against my lawyer?
A lawyer's conduct is closely governed by the Rules of Professional Conduct. Failure to follow the rules can result in a lawyer being disciplined by the Montana Supreme Court. If you believe that a lawyer has acted unethically, you may address a complaint to the court's Office of Disciplinary Counsel at 1(877)442-1648 (toll free, in-state only) or (406)442-1648. Forms and other information are available on the ODC website. The office will acknowledge your complaint and send a copy of it to the attorney involve, so that he or she has the opportunity to respond. Many complaints can be quickly resolved through an open discussion of the problem. If not, an investigation will be undertaken to determine whether or not the attorney violated the rules. If a violation is found, it is up to the Montana Supreme Court to determine what actions will be taken.
Can I Hire a Paralegal or a Friend to Help Me?
It is illegal for any person who is not an attorney member of the State Bar of Montana to give you legal advice, or to act on your behalf, in any legal matter in Montana. Be cautious about hiring a non-attorney, including friends, to assist you with legal matters. This is considered an unauthorized practice of law, and only attorneys licensed to practice law in the state of Montana can give legal advice, draft legal documents, or represent you. More information about the Unauthorized Practice of Law can be found here.
Should I represent myself?
Many people with legal problems hire attorneys to help them. Some people cannot afford to hire attorneys. Others decide they can take care of their legal problems on their own. People who handle their legal problems without the help of attorneys are sometimes called “pro se” or “self-represented” litigants. Attorneys are people who have legal training and are licensed to practice law. They can tell you the law that applies and the rules that must be followed. Attorneys have experience dealing with other attorneys, judges, court clerks, jurors, witnesses and other people who may be involved in your case. By choosing to represent yourself, you will be giving up the knowledge and experience that only an attorney can offer. You will also be giving up the advantage of having a professional advocate who can give you legal advice, go to court with you, and speak on your behalf. The decision to go it alone can be hard to make and should never be taken lightly.
More resources about representing yourself in court:
Set Up or Shore Up Shop CLE
Executive Committee Meeting