Finding a lawyer seems like it should be easy.
When you have a leak in a pipe, you call the plumber. When the lights go out, you call the electrician. When a legal problem arises, you call a lawyer … right?
Unfortunately, we all know it’s not that simple. Seven hundred of my best friends are attorneys, and sometimes I still have the same feeling.
Finding the right lawyer starts with aligning three primary concerns:
– The scope of your problem;
– The scope of your attorney’s experience and qualifications; and
– How your personalities and working styles will interact.
This isn’t all that goes into a successful attorney-client relationship, but making sure you line these three things up will go a long way:
The Scope of your Problem
In order to find the right attorney, you have to start with the problem you are trying to solve. While your attorney will — or at least should — ask you all of the following questions, it is incumbent upon you to think about the answers before the questions ever leave your lawyer’s lips.
For example, you should carefully consider all of the basic exploratory questions — who, what, when, where and why. Who are the parties and what is the nature of their business? Who isn’t at the table that should be? What duty or law existed, and what behavior or action violated that duty or law? What future duty do you hope to impose? Or what future opportunity do you hope to take advantage of? Are you looking to address past wrongs, set up a future supply chain or engage in continuous compliance obligations? When do you need a resolution? Where are the relevant jurisdictions? You would be stunned at how many people are taken off guard by these basic questions the first time they walk into my office.
A Few Parting Notes
– Big firm/small firm: From solo practices to large firms, each has its own personality, and that will further dictate strategy. Large firms have a large footprint, institutional knowledge and lots of resources they can bring to bear on any problem. They also may charge you for that ease of administration. A solo practitioner, on the other hand, may give you more personal attention, and may do work that is just as good or better than a large firm for a fraction of the price, but may be limited to helping you in a particular city or state. There are tradeoffs to this decision but know that firms and lawyers are less interchangeable than they may seem at first blush.
One resource to begin your search is the InterNational Cannabis Bar Association’s member directory (canbar.org).
– Billing practices: I have known people that have been invited out to an NBA skybox by their lawyer, only to see a seven-minute conversation about the case show up in the bill. Billing can always sour the relationship, whether you feel you are overbilled, or if the lawyer feels they need to bug you to pay what you owe. Nip billing disputes in the bud; if the lawyer is not clear about discounts or other benefits, make sure there is a record of those conversations.
– Different counsel for different issues: Needing more than one lawyer isn’t necessarily a bad thing. When your lawyer doesn’t know something and tells you that they do not know it, thank them. You are better off with a straight-shooter who lets you know when a subject is beyond their comfort zone than you are with someone who does poor work. When your lawyer can admit their limitations and advise you to seek additional counsel, it’s usually a good thing.
– “I don’t know yet” is a good answer: Lawyers are people, too. We don’t know everything, even if we think we are very smart. But a lawyer should know how to find the answers. A lawyer that gives quick answers that do not seem well-thought-out or that do not make sense is a red flag. A lawyer who tells you they are not sure and will need to get back to you (and that actually do get back to you) is a positive trait.
— Christopher Davis
But, perhaps most importantly, ask yourself what success looks like. What would make you happy when this is all said and done?
To help remove your emotional response, try describing the issue with generic labels instead of names. Saying that Joe wants to sue Mary isn’t very useful. But saying “a lessee wants to sue a lessor for breach of a commercial lease for a specific property” conveys a surprising amount of information about the nature of the dispute and the attorney you need — in this case, a commercial real estate attorney with knowledge of a specific set of land-use laws. Now we’re getting somewhere.
The Scope of your attorney’s experience
Now that we’ve taken a good, hard look at what we’re trying to achieve, let’s say something about the lawyers themselves.
From a basic perspective, the lawyers that are helping to serve your business from a non-criminal perspective generally fall into three groups.
First, you have the litigators — the fighters who help you address some wrong that has occurred.
Second, you have transactional attorneys — the lawyers who draft your contracts to help make sure the deal you get is the deal you wanted.
And third, there are in-house attorneys — those who join your company full-time to make sure that all of your continuing legal needs are addressed in a timely manner.
If you are looking for a litigator, look for experience in the particular forum. If you are going into tax litigation, use a tax litigator. If you are going before a regulatory agency, seek out someone who is familiar with disputes in that agency. If it’s a typical civil litigation, make sure your lawyer has experience in the applicable federal or state court. Procedural aspects of litigation differ from court to court and can be dispositive, so familiarity with local rules can mean the difference between winning and losing. But before you even get to court, make sure your approach to the dispute matches up with your attorney’s (more on this below).
If you are looking for a transactional attorney, look at the type of transaction. Lawyers in more complex areas will generally have a narrower focus. A tax attorney or a securities lawyer may not do much else given the complexity of those practices, while a small business attorney may do some basic finance work, partnership agreements, incorporation and some commercial contracts. Make sure their competence matches your need. Unfortunately, as in any profession, some lawyers may overstate their comfort with a particular practice area. Ask questions. The more specific the question, the better; and the more reflective their experience is of your current dispute, the better.
And don’t forget to make sure that the attorney’s geographical qualifications line up with your need; local, state, federal and international law may apply to your problems, so make sure the lawyer has the knowledge of the applicable regulations and the agencies that are in charge of enforcing those regulations.
If you are looking for an in-house counsel, it may be that more areas of basic knowledge are more helpful than few areas of deep knowledge, unless you have a specific area on which you’d like to focus. Remember that your in-house counsel will be acting like a general contractor and hiring outside lawyers as subcontractors for any exceedingly complex problems, so the ability to spot potential problems can be more important than the ability to solve them on the spot. Comprehensive knowledge of the applicable cannabis regulations is an important component of this.
Before we get any further, let’s talk about the self-described “cannabis attorney.” What that attorney means is, “I am an attorney that knows something about one or more regulatory structures that govern a state-legal cannabis market.” In the cannabis industry, a working knowledge of jurisdictional regulatory issues specific to the cannabis industry is necessary — and should be combined with everything else I’ve discussed in this article. I cannot emphasize this enough. State-level cannabis laws can change how traditional legal concepts are applied. Your lawyer needs to know how the underlying traditional law is applied and how the cannabis laws alter that application.
Making sure your personalities match
They call us counselors for a reason. While a lot of what we do is writing agreements and arguing with your counterparties, the balance is advice. You should trust your lawyer, and your lawyer should trust you. They should bring you options, give you advice and leave the ultimate decision on how to proceed up to you. But make no mistake, this is a symbiotic relationship — if either the lawyer or the client feels the fit is not right, the engagement will not last. And a short engagement means wasted time, effort and resources.
This is particularly important in the realm of litigators. There are myriad options for litigators to elicit a response from your counterparty, and virtually all of them are strategy-based. My dad is a litigator, and he often drafts a complaint before he sends his first demand letter, so he can file a suit the next day if he gets an unacceptable response. One of my best friends is a litigator, and she sends a letter dripping with honey, asking for an amicable resolution before even considering her first cause of action.
Each of their approaches has different costs, different timelines and different resolutions. Neither one of them loses cases often, but I can tell you that the difference between each of their client bases is night and day, and I’m pretty sure their clients wouldn’t trade lawyers for the world.
When you begin your search for a lawyer, above all, trust your instincts. Communication is essential in this relationship, as is a high level of mutual respect, which will enable you to work through the issues facing your business together.
And if you’re not comfortable with potential counsel, keep looking.
Christopher Davis is the Executive Director of the International Cannabis Bar Association (INCBA) and is an attorney licensed in New York and California. Chris oversees the more than 60 hours of Continuing Legal Education INCBA provides annually for attorneys serving the cannabis industry, and manages INCBA’s committees, in-person events, attorney activism projects, non-profit partnerships, and Pro Bono engagements.