Let’s face it, California employers need to have a great working relationship with an employment lawyer. Even if the employer has never been sued, an experienced employment lawyer is key in preventing litigation. Below are five recommendations about what to look for when hiring an employment attorney, and when an attorney should be engaged (hint: sooner than later):
1. Personality fit is key.
Just like any other high-stakes, high-stress relationship, how you get along with your employment attorney is one of the most fundamental aspects to the relationship. I’m not saying you have to be able to be best friends with your attorney, but do you learn new things from them when you speak? Also, consider whether you enjoy calling your attorney. If you dread speaking with your attorney, you will use them less, receive less critical council, and this could cost you a lot of money in the long run. Your attorney needs to be a trusted advisor that you feel comfortable reaching out to for advice.
Also, the attorney’s personality and how they treat you as a client is a key indicator on how they treat the attorneys on the other side of the deal or in litigation. Most clients say they want the scorched-earth, brass-knuckles attorney representing them. However, business deals and even litigation (at its core litigation is a business transaction), usually need to be resolved when reasonable people reach a compromise. If your litigation attorney is billing by the hour and never seems interested in considering how to resolve the case sooner than later, it should raise some concerns. Likewise, if your business attorney is not working on a flat fee and has issues with every single negotiation point in a deal, this could be a concern.
2. Ask friends and contacts for referrals.
If you do not know any attorneys, ask your contacts in your industry for a referral. If you have a trusted attorney that does not practice employment law, ask that attorney for a referral. As discussed below, the legal industry is becoming very specialized, and attorneys that routinely practice in the area you need assistance with are critical.
3. Engage attorneys with experience in your industry.
Just as important as the attorney’s experience in the practice area, it is equally important to find an attorney with experience in your industry. If you operate a restaurant, your issues will be much different than the owner of a start-up software company. Employment laws do not generally change based on which industry your company operates in, but there are some exceptions to this general rule. Moreover, an attorney that has worked in your industry will be able to bring the experience of previously dealing with the issue, and will be better positioned to understand what to expect two or three steps in the future.
4. Seek lawyers with a focus on that type of law (such as employment law).
For example, I can determine within about five minutes if I’m dealing with opposing counsel who do not routinely litigate employment cases. Likewise, I would be the first one to admit that I am not the attorney to negotiate your next lease. Clients save a lot of money when hiring attorneys with experience in the area they need assistance in – many of the routine issues are already understood by the attorney and do not have to be researched. Generally, a company will typically require the following types of attorneys:
- Corporate attorney to assist with forming a corporation, raising money from investors, and stock issues.
- Employment attorney to set up employment policies, such as handbooks, set up and audit pay practices to ensure everyone is properly classified, and to be available for routine advice and counseling issues that will come up from time-to-time.
- Tax attorney to work with your other attorneys and accountants to advise on tax implications on various transactions and how best to structure the transactions to minimize the tax implications.
- Intellectual property attorney when dealing with any copyright, trademark, or patent issues.
- Real estate attorney to review leases or agreements to buy/sell buildings or land.
5. Engage a lawyer before you need them.
Once you realize that an attorney will likely be needed for your business, engage the attorney for some small issues. Make sure your personalities match, see if the attorney provides good value to your company, and get a general sense of the attorney. In the employment context, it is also a good time for the attorney to get a sense of the company’s policies, meet people in the human resources department, and potentially review and update the employee handbook. This general knowledge is helpful when a critical issue arises, and important decisions must be made with your attorney on a very tight timetable. It is much more comfortable to have the beginnings of a relationship with the attorney established before your company is trusting this advisor with issues that will have significant consequences.