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Hiring a Lawyer
The most consequential document in the attorney-client relationship is the one most clients never read. Not the complaint. Not the motion. The engagement letter, signed at the beginning of a representation while the client is still thinking about the problem that brought them through the door, governs every obligation, every fee, every boundary of the work to come. It is a contract, and it behaves like one.
Most guidance on hiring a lawyer concerns itself with credentials, specialization, courtroom demeanor. These matter. But they matter the way a restaurant’s reputation matters when you have already signed a lease on the building: the terms of your occupancy were settled before you tasted the food. In the selection of counsel, the terms of occupancy are settled in the engagement letter, and most clients treat it as a formality.
The Engagement Letter
Under the rules of professional conduct in most jurisdictions, an attorney who undertakes to represent a client must provide a written letter of engagement before commencing the representation, or within a reasonable time thereafter. New York codified this requirement in Part 1215 of the Rules of the Chief Administrator. The rule is straightforward. Its application is not.
An engagement letter defines the scope of representation. This is the clause that determines what work the attorney will perform and, more critically, what work falls outside the agreement. A retainer for a commercial lease dispute does not, unless specified, cover the appeal. A retainer for estate planning does not cover the probate litigation that follows when the estate is contested. The scope clause is where expectations diverge, and where most fee disputes find their origin.
We review engagement letters from other firms with some regularity, usually after a dispute has already surfaced. The pattern is consistent. The scope is described in language broad enough to encompass anything and specific enough to exclude nothing. The billing terms are present but skeletal: an hourly rate, a retainer amount, a sentence about costs. The termination clause, where it exists, occupies a single line.
A good engagement letter is a diagnostic instrument. It tells you what the attorney anticipates before the attorney tells you.
The fee structure deserves particular attention, though it receives the least. Hourly rates are stated. The billing increment is sometimes omitted. A firm that bills in six-minute increments charges differently, over the life of a case, than one that bills in fifteen-minute increments, and the engagement letter is the only document where this distinction appears. Whether costs are advanced by the firm or billed to the client directly is another term that surfaces in the letter and nowhere else until the first invoice arrives.
Three clauses tend to receive no scrutiny at all. The first is the arbitration clause, which determines whether a fee dispute will be resolved by a court or by a private arbitral body. The second is the lien provision, which may grant the attorney a security interest in the client’s recovery or file. The third (which, it should be noted, operates differently across jurisdictions and has been the subject of conflicting appellate decisions that the bar has not entirely reconciled) is the provision governing what happens to the file when the representation ends.
One reads the engagement letter the way one reads any contract: not for what it promises, but for what it permits.
What the Consultation Measures
The initial consultation is where most hiring guides direct their attention. The questions they recommend are reasonable. They are also insufficient.
Under ABA Model Rule 1.18, a person who consults with a lawyer about the possibility of forming an attorney-client relationship is a prospective client, and the attorney owes duties of confidentiality from that moment forward. The consultation is already a legal event before anyone has signed anything. Most clients do not perceive it this way. They perceive it as an interview.
What the consultation can measure is temperament and attention. Does the attorney ask about the documents, or does the attorney ask about the outcome you desire? The former suggests a practitioner who begins with the record. The latter suggests one who begins with the verdict and works backward, which is a method, though not the one that tends to produce the most careful analysis.
Whether the court intended Rule 1.18 to create a meaningful protection for prospective clients or merely to codify what practitioners already assumed is a question worth considering.
We tend to evaluate consultations from the attorney’s side as much as the client’s, because we have conducted enough of them to recognize what the first meeting conceals. The attorney who offers a confident timeline in the first meeting is, if we are being precise, not being confident but premature. Litigation does not submit to calendars the way a real estate closing does, and the attorney who promises otherwise is selling comfort rather than counsel.
Fee Structures and the Quiet Parts
The hourly rate is a number. It is not a price.
The price of legal representation is the hourly rate multiplied by the hours expended, adjusted for billing increments, augmented by costs, and subject to whatever minimum billing the engagement letter permits. A rate of three hundred dollars per hour at a firm that bills without restraint produces invoices that bear no resemblance to the rate alone.
Contingency fee arrangements present their own opacity. The percentage the attorney receives is calculated against the gross recovery in some agreements and the net recovery in others. The difference is substantial. A contingency fee calculated on the gross, before costs and expenses are deducted, leaves the client with less than the percentage implies. California’s Business and Professions Code Section 6147 requires that contingency fee agreements specify whether the percentage applies to gross or net, and whether costs are deducted before or after the attorney’s fee is calculated. Most states do not impose this level of specificity.
Flat fees are presented as a simplification, and they function as one, provided the matter proceeds without complication. A flat fee for an uncontested divorce is a reasonable arrangement. A flat fee for a matter that becomes contested is a fee that no longer corresponds to the work required, and the engagement letter will specify what happens in that circumstance, or it will not specify, which is worse.
Something like sixty percent of the fee disputes that reach arbitration under programs like New York’s Part 137 involve a disagreement not about the rate but about what the fee was supposed to cover. The scope clause and the fee clause are two expressions of the same question. They are rarely examined together by the client who signs them.
There is a particular silence in a conference room when the subject of fees is first raised. The client does not wish to appear unable to afford the representation. The attorney does not wish to appear mercenary. Both parties accommodate this silence by moving through the fee discussion with less precision than either would tolerate in the substantive legal conversation that follows. We address fees in the first ten minutes of any consultation, before the legal analysis begins, because the conversation changes shape when the financial terms are settled rather than assumed. The fee discussion deserves the same exactness as the legal discussion. It seldom receives it.
When the Relationship Fails
A client may terminate the attorney-client relationship at any time. The attorney’s right to withdraw is more constrained, governed by Rule 1.16 of the Model Rules and its state equivalents. Mandatory withdrawal is required when the representation will result in a violation of the rules of professional conduct. Permissive withdrawal covers a range of circumstances, including the client’s failure to pay fees.
The practical mechanics of termination are less elegant than the rules suggest. The attorney retains a lien on the file in many jurisdictions. The client’s new counsel must request the file transfer, and the process can be delayed. Deadlines continue to run in the interim.
We handle transitions from prior counsel on a regular basis. The files arrive in varying states of completion. Deposition transcripts missing from the record. Motions drafted but never filed. Correspondence that went unanswered for weeks. The quality of the prior representation reveals itself in the file long before anyone describes it in a consultation.
The termination clause in the engagement letter governs most of this, and it is the clause that matters most when everything else has ceased to function.
The Decision Before the Consultation
Before the engagement letter, before the consultation, before the referral from a colleague or a name retrieved from a bar association directory, there is a decision the client has already made. The decision is not which lawyer to hire. It is whether the problem requires a lawyer at all.
This is the question that most hiring guides treat as self-evident. I am less certain about that than the sentence structure might suggest. A considerable number of the consultations we conduct conclude with the recommendation that the prospective client does not, at present, require legal representation for the matter described. The lease dispute that can be resolved with a letter from the landlord’s own management company. The contract question that an accountant is better positioned to address. The family matter that requires a mediator before it requires a motion.
You sign the retainer and then you discover what the retainer means. That is the experience for most clients, and it does not need to be.
The engagement letter is readable. The fee structure is negotiable, though attorneys permitted to treat it as fixed will often do so. The scope of representation is a conversation, not a decree. The attorney who presents the terms of engagement as settled before the client has asked a single question about them is communicating something about the relationship that follows, whether intentional or not.
A first consultation costs nothing at most firms and assumes nothing at any of them. It is the beginning of a diagnostic, not a commitment. One calls not because the answer is certain, but because the cost of continued silence tends to compound in ways that the consultation itself does not.