Why You Need a Transparent Lawyer
If you are looking for a New York business attorney, do you know why he or she should be transparent? As a small business owner or a litigant in a lawsuit, you want to know what is going on at all times, at least at some level. Why?
Before I answer that, let me give you some context. In the context of litigation as a New York business attorney, if there is party to a lawsuit in one of the Courts of New York State (and federal court in New York as well), and that party is represented by an attorney, the attorney typically needs permission from the Court to withdraw, particularly where the party, upon the withdrawal of the attorney, is no longer represented by an attorney. Where the party has another attorney that it immediately wants to hire, the parties can do a substitution of counsel, and that normally does not require Court approval, although some attorneys like to get Court approval anyway; some attorneys, short of Court approval, will get acknowledgment from the other side, although that normally is not necessary — there just needs to be a substitution between the outgoing attorney and the incoming attorney.
The process for getting court approval to be removed as a party’s attorney, even with that party’s consent, is fairly formal, regimented, and time consuming. In fact, even where I had a signed affirmation from a client consenting to my withdrawal, I had to go through the process. The way it’s normally done is by order to show cause, which is like a motion — to get a Court to do anything, you have to move it, or file a motion, an order to show cause, or some other application or a request for judicial intervention (in New York state court, anyway). The reason for Court approval for the withdrawal of an attorney when there is no attorney being substituted in or replacing the outgoing attorney is to protect the party that the attorney is withdrawing from and will no longer be representing. And why should parties be protected? Because they are at a substantial disadvantage in a lot if not many or all or substantially all instances where they are not represented by an attorney. Parenthetically, when a party represents itself it is proceeding pro se.
This notion of protecting a party to a lawsuit relative to it being represented by an attorney or not seems to stop at the point of the attorney withdrawal provisions and the consent or notice provisions associated with attorney withdrawal.
Let me explain.
As protective as the Courts are in closely supervising attorney withdrawals, which I just described above, the Courts seemed to have missed the mark completely on this next point. Presumably — and this is a huge presumption, as my whole argument is based on it, and if the presumption is wrong, then the rest of my argument fails — the Courts heavily monitor and preside over attorney withdrawals because the attorneys are there to protect the clients. For instance, the attorneys — and not the clients — receive notifications of court filings, communicate with the other side’s attorney, communicate with the judge, know how to navigate the complexities of the procedural rules, and know the substantive law, or if they do not know it themselves, know how to get it. Now, enter this concept I am raising: transparency. In the context of litigation, a transparent New York business attorney is someone who doesn’t affirmatively hide or distort material information that would aid in the representation of the client. An example of this is when an attorney intentionally misrepresents the strategy to the client as a strategy that takes the client down a path of enormous fees and an unbearable time suck when the client’s only interest is to resolve the litigation and be done with this. A real life example of this happening is when a new client told me that his former attorney ran up over $230,000 in legal fees for a case that he wound up settling for a fraction of that. Let me be clear: it all depends on the goals of the client. I’ve had clients tell me they would rather pay me $100,000 than pay their adversary a dime. In those instances, the fees don’t matter to the client. In other instances, the fees do matter and when they do, a New York business attorney lacks is not transparent when knowingly advising the client to take one course of action for the purpose of racking up fees, when the attorney knows the case could be resolved much sooner and for much less money.
Another way an attorney could fail to be transparent is in the context of communicating Court deadlines and appearances to the client that are “attorney only” — a lot of times, we have status conferences that only the attorneys appear for, and attorneys should communicate those deadlines with their clients. Many do not, however, because presumably those attorneys want to show their value to the client by withholding information, so that the client becomes dependent on the attorney. To me, that’s immature, insecure, and is a waste of energy — the resourceful client can find out Court deadlines and other public information on their own, and besides, that’s not where a New York business attorney adds value. Instead, a New York business attorney adds value to a client by reviewing the documentation, asking the right questions, proposing the right strategy, communicating with the client, executing that strategy, and then pivoting if, as, and when necessary.
Here’s the point: there is case law in New York that says a client is responsible for the failures of its attorney for missing court appearances, for example. That means that if an attorney is not being transparent with the client, and the attorney misses deadlines, those missed deadlines are attributable to the client. There is a concept called law office failure, which puts the blame of the attorney’s conduct on the attorney and not the client, and the client is given a pass, but that doctrine has its limitations and when those limits are reached, the client is held responsible. The reason? If Courts were to keep giving clients with irresponsible attorneys a pass, the client could simply hire incompetent attorneys and then shrug its shoulders when the Court asks what happened, which would harm the other party to the litigation. This is presumably to prevent that conduct. Even so, the aggrieved client, whose attorney missed deadlines and that conduct was attributed to the client, would have the right to sue the attorney in a separate litigation.
The foregoing is an example of transparency in the litigation context. It also applies in the transactional context. For example, when parties negotiate documents, there is often back and forth and exchanges of drafts between the attorneys. One of the ways attorneys lack transparency is by neglecting to tell their clients that the process could go much quicker and smoother if the business people could agree on the base terms of the transaction, then get everyone on the phone, and share a screen, and draft the document and agree on the language together. This may sound cumbersome, but it saves an enormous amount of time, and therefore, saves fees. This transparency paradigm exists in all practice areas between attorney and client, but this page only covers litigation and transactional practices.
You’ve found your transparent New York business attorney: The Lawyer James (me). Not only am I a transparent New York business attorney, but I also only work with and hire transparent New York business attorneys on my team, because those are the attorneys who serve you best.