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Managing Legal Resources Best Use of Your Legal Team Kentucky Association of School Administrators Education Law & Policy Symposium June 7, 2012 Presented.

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Presentation on theme: "Managing Legal Resources Best Use of Your Legal Team Kentucky Association of School Administrators Education Law & Policy Symposium June 7, 2012 Presented."— Presentation transcript:

1 Managing Legal Resources Best Use of Your Legal Team Kentucky Association of School Administrators Education Law & Policy Symposium June 7, 2012 Presented By: Peter K. Fagen, Managing Partner Fagen Friedman & Fulfrost, LLP

2 2 Top 5 Indicators That You Need a New Lawyer: 5….When the opposing counsel see your lawyer they high-five each other. 4….His last good “case” was of Budweiser. 3….You met him in prison. 2….He begins closing arguments with, “John Grisham once said …” 1….The sign in front of his law office reads “Practicing Law Since 10:00 a.m.”

3 3 Overview  Selecting Your Legal Counsel The Process Qualities to Look For Interviewing Tips A “Great Match”– Finding Your Attorney  Getting the Most out of Legal Services Effective Use –Shared Expectations –Communicating With Your Attorney Efficient Use –The Legal Bill –Proactive Measures

4 4 Selecting Your Legal Counsel The Process  Choose the Right Law Firm and Attorneys  Research the alternatives  Pick counsel based on YOUR needs  Practice “pre-emptive” lawyering  Establish relationship with legal counsel before you need them  Lawyers are like medicine – sometimes you need them to “cure” a problem, other times they can prevent one

5 5 The Process: Firm Selection Remember  When you choose an attorney, you are choosing a law firm TOO STEP 1 - Gather Recommendations STEP 2 - Prepare Questions STEP 3 - Conduct Interviews STEP 4 – Select a Firm STEP 5 – Clarify Important Items STEP 6 – Written Contract

6 6 The Process: Researching the Law Firm Qualities To Look For:  EXPERIENCE  How long have the attorneys worked in your practice area?  How much of the firm’s work is focused on your field?  REPUTATION  Gather recommendations from colleagues and peers  View attorney’s background and case history using the firm’s website or online guides (i.e. Westlaw’s Attorney Search, Martindale Hubble, California State Bar)

7 7 The Process: Researching the Law Firm More Qualities To Look For:  CLEAR IDENTITY  Mission  Philosophy  Core beliefs  RIGHT GOALS/OBJECTIVES  The Right Firm: Driven by client needs  The Wrong Firm: Driven by Fees

8 8 Interviewing Tips Meet the Firm AND the Attorneys with whom you will be working  Request that assigned attorneys be at the interview  Attend conferences or seminars hosted by the firm Great chance to meet the attorneys face-to-face

9 9 Interviewing Tips TIME AND MONEY  Look for a law firm well before you need one NOT 10 minutes after parent files due process  Make sure that the firm’s billing practices are understood and agreed upon

10 10 “Great Match” – Picking Your Attorney CHARACTERISTICS:  WORKING STYLE Is Your Legal Team Accessible? Are they Easily Understood? –Clear explanation of legal concepts –NO “Legalese” Are they Focused on what your needs are? Are they Listening to your comments and concerns?  COMMUNICATION AND PEOPLE SKILLS Are they comfortable working with you, others? Will they speak confidently and clearly to your Board, staff, the Public?

11 11 “Great Match” – Picking Your Attorney CHARACTERISTICS:  ACCESSIBLE Offers Easy Contact: Cell, Email, etc. Available Hours Policy on Returning Email, Phone Calls  THE “RIGHT FIT” Make sure you and your attorney will have a positive and enjoyable relationship Don’t hesitate to ask for a change of counsel in order to get a “better fit”

12 Effective Use of Legal Resources Shared Expectations & Communicating with Your Attorney

13 13 Shared Expectations: What Should Counsel Provide You?  The TRUTH—the good news AND the bad news  Proficient and Dedicated Representation  Confidentiality  “If I can’t tell my mother, I tell my priest. If I can’t tell my priest, I tell my attorney.”  Punctuality for Meetings, Mediations, Etc.

14 14 What Should Counsel Provide You?  Timely Responses  Prompt return of you phone calls within your time constraints or response to a written request for an opinion  Copies of all important documents in time for inclusion in Board packets, if necessary

15 15 What Should Counsel Provide You?  Copies of Work Product  If you are billed for the preparation of a document, expect a copy of the end product  For important documents, multiple drafts should be presented for your approval before final production

16 16 What Should Counsel Provide You?  Clear and accurate billing statements  (More about this later…)  Assurance that any work done is first authorized by you.

17 17 What Should Counsel Provide You?  Current and Essential Information  The Duty to Inform  Rule of Professional Conduct 3-500 requires that attorneys keep clients “reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”

18 18 Shared Expectations What Should You Provide Counsel?  Complete Transparency  Honest Information Even the BAD stuff helps us give you a better resolution.  Total information Even the smallest of details may be relevant.  A Clear Picture of What You Want and Why  More than just the FACTS  Background and context of the problem  Political climate  Is the issue sensitive with the community? The Board? Staff?

19 19 What Should You Provide Counsel?  After receiving legal advice:  If in agreement  FOLLOW THRU  If hesitant  Thoughtful consideration of the guidance  Punctuality  Your attorney’s time is as important as your own

20 20 Provide General Information  Before any issues arise, you should provide your attorney with:  complete copies of your collective bargaining agreements.  complete copies of your board policies and administrative regulations.  Board meeting schedule for the year.

21 21 Communicating With Your Attorney  The initial phone call  Preparation is KEY It will save you time and $$  Preparation Tips: Research the facts and have them readily available Review relevant policies or other documents Explain your specific question to the attorney

22 22 Communicating With Your Attorney: The Written Follow Up  After the initial phone call: Consider putting provision of assignment in writing.  Avoids confusion  Serves as a visual reminder to attorney  Even if oral opinion received by phone, generally request the opinion in writing.  You are paying for the protection of the opinion. The value is in preserving the advice as evidence, for the board, and for your future reference.  Oral advice is cheaper, but less useful in the event of a problem.

23 23 Communicating With Your Attorney: Deadlines and Other Dates  STATE CLEAR DEADLINES  Avoids confusion  Include in written correspondence  PROMOTE ACCURATE DEADLINES  Many deadlines are measured from the date of the event or the date of district notice Be sure to provide these to counsel.

24 24 What Should Counsel Tell You?  Counsel should give you advance notice of risk, including costs related to decisions.  You should be prepared, and your board should be prepared, for any bad result.  Your strategy and policy decisions should be based upon a full understanding of the risks and rewards.  Counsel should not:  Recommend litigation when the district’s goals may be met by other means.  Allow a client to be surprised by a result.  Dissuade honest evaluation and full communication in efforts to give only answers the client wants to hear

25 25 HYPOTHETICALS What’s Wrong With This Picture? A client takes an aggressive stance with a problem employee, who happens to be in a protected group, without discussing the matter with counsel. The board policy at issue was last modified in 1987. No Proactive Approach

26 26 What’s Wrong With This Picture? The client calls the attorney the day before the resulting DFEH response is due, requesting assistance. The attorney has no documentation on the matter, and the principal involved in the incident is nowhere to be found. No Advance Warning

27 27 What’s Wrong With This Picture? After the response is filed, the client says, “Oh, by the way…” and then tells the attorney an important fact previously withheld. Lack of Disclosure What does this create? An Attorney’s Worst Nightmare

28 28 What’s Wrong With This Picture? You are sued over a board policy you thought was up to date. You were unaware of major changes in the law impacting the policy. No Proactive Approach

29 29 What’s Wrong With This Picture? The lawsuit is a year old and you haven’t heard about it for six months, except for the monthly bills. Your board asks you the status and you meekly respond, “I don’t know, but it is costing $20,000 per month.” No Status Reports

30 30 What’s Wrong With This Picture? You finally get a call informing you of the case status. The attorney says, “oh, by the way,” and then tells you that you owe an employee $125,000 and must give him his job back. “Superintendent evaluation” is placed on the next board agenda and it is only October. No Preparation For The Bad News What does this create? A District’s Worst Nightmare

31 EFFICIENT USE OF LEGAL RESOURCES The Legal Bill & Proactive Measures

32 32 Understanding Law Firm Structure  Associates are:  Less expensive.  More accessible.  Less experienced.  Your primary contact will often be a partner, but expect the associates to do most of the work  Partners control quality by reviewing and approving the associate’s work PARTNER ASSOCIATE LAW CLERK ASSOCIATE PARALEGAL

33 33 The Legal Bill Tip #1 - Restrict access to counsel  Limit access to legal counsel to appropriate staff Upper Level Administrators: Superintendent, Directors Ex. Teacher or lower level administrator should not contact lawyer directly  Limit attorney access for certain matters to a single “go-to” contact Effect: Avoid redundant and necessary conversations with counsel that might increase costs

34 34 The Legal Bill Tip #2 - Review the bill  Request delegation of duties. Make sure the firm is delegating work appropriately. Partners $$$ > Associates $$ Associates $$ > Paralegals $  Request budgets for large projects Many contractors have to show you costs in advance, attorneys should TOO Effect: Keeping track of how your money is spent will prevent excessive charges

35 35 The Legal Bill TIP #3- Beware of the RED FLAGS  Block billing Entries should be broken down into single tasks  Non-descriptive billings Entries should be specific and clear about the work done  Billings without actual product For documents billed, attorney should provide that document to the client  Unapproved projects No surprises  Training time You should not pay training costs for new attorneys. However, associates can be good bargains due to low billing rates and easy access.  Mistakes Entries for other clients billed to you

36 36 Sample Attorney Bills A Classified Dismissal Problem  You have heard credible reports that a maintenance worker on campus has inappropriately touched a high school student, and rumors of a relationship between the two abound.  The employee and the girl refuse to cooperate, neither confirming nor denying the relationship.  You call counsel to move to terminate and your bill shows the following:

37 37 Sample Attorney Bill No. 1 7/1/07 – 4.0 - RRS – Teleconference regarding Mr. Bure’s child molestation of Lolita Kournikova; draft charges for termination and miscellaneous legal services. Issues  Block billing.  Poor explanation of services.  Improper use of names.  Has the union been contacted?  No indication of approval for charges.  No proof of notice to law enforcement.

38 38 Sample Attorney Bill No. 2  7/1/07 -.3 hrs.- PKF – Teleconference with Superintendent regarding classified discipline matter.  7/1/07 -.6 hrs. - PKF - Review BP and AR; Legal research regarding District rights and duties related to alleged misconduct.  7/1/07 -.4 hrs. – HAF – Legal research and analysis regarding classified dismissal.  7/1/07 -.6 hrs – PKF – Teleconferences with CPS and District Attorney notifying of allegations; draft CPS notice letter.  7/1/07 -.7 hrs. – PKF – Teleconference with CSEA regarding voluntary resignation.  7/1/07 -.3 – PKF – Teleconference with Superintendent re: notice to CPS, resignation and modification to BP/AR.  7/1/07 – 1.1 hrs. – PKF – Modify District Policy regarding classified dismissal; draft resolution regarding same.

39 39 Proactive Measures  Maintain good relationships with staff.  Maintain positive relationships with employees. Promotes open communication and resolution of problems before lawsuits Saves thousands of dollars annually  Measure twice, cut once.  Seek advice early on. Allows time for thorough and comprehensive research Careful planning and forward-thinking = MORE IMPECCABLE LEGAL ADVICE

40 40 Routine Maintenance  “An opinion a day keeps the lawsuits at bay.”  One short phone call can save you from a lawsuit  Can also save the Board from surprises, get advanced warning of developing situations  Get it down on paper.  A written opinion can be used over and over  Saves costs  Never pay twice for the same advice!  Ensure that BPs and ARs are up to date and correct.

41 41 Avoid Litigation  Cost of preventative advice < Cost of litigation  Possible added litigation costs: $ Insurance premiums and deductibles. $ Costs incurred in depositions, discovery and preparation. $ Relationships with employees, parents and the community. $ Consequences of bad verdict. $ Political costs. Attorneys’ fees for an average case through trial = $100,000+

42 42 Emerging Legal Trends  On-site Attorney on a weekly or monthly basis.  Advantage of full attention and hands-on help  Instant feedback when the problem arises  Use of technology (i.e. computerized research banks, macros) Your attorney should maintain: –Opinion letter files. –Document management systems. –Practice groups and other information sharing.

43 43 One for the Road… A new client had just come in to see a famous lawyer. "Can you tell me how much you charge?" said the client. "Of course," the lawyer replied. "I charge $200 to answer three questions!" "Well that's a bit steep, isn't it?" "Yes it is", said the lawyer, "And what's your third question?"

44 COPYRIGHT 2012 ALL RIGHTS RESERVED Reproduction permitted only with the express written consent of authors.

45 45 PLEASE NOTE These materials are for instructional purposes only. This information is not intended as legal advice. If you are in need of a legal opinion on the subject matter covered herein, you should contact your local school counsel or Fagen Friedman & Fulfrost. If you are interested in having other in-service programs on school law presented in your school district, please contact Peter Fagen at pfagen@fagenfriedman.com.

46 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances. Thank you!


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