Managing Legal ResourcesBest Use of Your Legal Team

Kentucky Association of School AdministratorsEducation Law & Policy Symposium

June 7, 2012Presented By:Peter K. Fagen, Managing PartnerFagen Friedman & Fulfrost, LLP

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Top 5 Indicators That You Need a New Lawyer:

5…. When the opposing counsel seeyour 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.”

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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

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Selecting Your Legal CounselThe 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

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The Process: Firm SelectionRemember 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

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The Process: Researching the Law FirmQualities 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)

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The Process: Researching the Law FirmMore 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

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Interviewing TipsMeet 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

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Interviewing TipsTIME 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

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“Great Match” – Picking Your AttorneyCHARACTERISTICS:

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?

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“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”

Effective Use of Legal Resources

Shared Expectations

&

Communicating with Your Attorney

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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.

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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

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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

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What Should Counsel Provide You?

Clear and accurate billing statements (More about this later…)

Assurance that any work done is first authorized by you.

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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.”

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Shared ExpectationsWhat 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?

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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

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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.

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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

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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.

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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.

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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

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HYPOTHETICALSWhat’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

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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

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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

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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

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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

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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

EFFICIENT USE OF LEGAL RESOURCES

The Legal Bill&

Proactive Measures

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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 ASSOCIATE

LAW CLERK PARALEGAL

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The Legal BillTip #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

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The Legal BillTip #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

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The Legal BillTIP #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

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Sample Attorney BillsA 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:

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Sample Attorney Bill No. 17/1/07 – 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.

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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.

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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

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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.

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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+

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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.

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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?"

COPYRIGHT 2012ALL RIGHTS RESERVED

Reproduction permitted only with the express written consent of authors.

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PLEASE NOTEThese 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.

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!