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The Problem of Over-Lawyering, and How to Avoid It. |
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Over-lawyering refers to the strategy of an
attorney sparing no cost or leaving no detail uncovered as they
vigorously pursue a legal matter. This strategy often leads to
overkill for small and medium sized clients, and forces them to buy
legal services they may have done without.
Virtually all incentives for the attorney are to over-lawyer every legal matter. First and foremost, over-lawyering generates much larger attorney's fees. Also, the "spare no cost" method virtually eliminates the malpractice risk from clients later claiming more should have been done on their legal matter. Finally, some attorneys mistakenly believe the duty of "zealous advocacy," to which all attorneys are bound by licensing rules, means they must leave no stone unturned. In fact, the attorney's duty should be to consider not only the legal risk involved, but also the client's legal budget. This "spare no cost" approach to lawyering can be ideal for the right circumstances, but should never be carried out routinely by attorneys, as is so often the case with attorneys who primarily serve large corporate clients. For the medium-to-small client, this approach should be reserved for the most dire of legal situations, such as when the client must defend a lawsuit that claims thousands of dollars in liability, or when the client is about to sign a large contract that risks thousands of dollars in liability if things go wrong. The first and most important step to avoiding over-lawyering is to hire an attorney who recognizes there is a real issue with over-lawyering. Many attorneys have never thought about this issue. Second, sign a retainer agreement that identifies very specifically what will be done. This step will places limits on the representation, thus making it harder for the attorney to over-lawyer . For this same reason, this step may also your attorney feel more comfortable that they don't have to over-lawyer. Third, in larger, ongoing legal projects, such as litigation, set a legal budget within which your attorney must operate, and to which your attorney is accountable. Fourth, ask your attorney to put legal risks into perspective for you. As an example, if the attorney recommends hiring a private investigator, have the attorney explain what is at stake if no investigation is done. It could be that the legal objective could still be met, even without an investigation. Many attorneys want the complete authority to make such decisions, even though the investigator's bill is paid by the client. As the client, you want to not only be fully informed as to the pros and cons of all large spending decisions, but you want to be in control of them. Finally, demand frequent and detailed invoices, which will help eliminate over-lawyering by allowing you to manage your own legal budget.
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