I’m taking a little risk with this month’s topic, considering that each and every one of my clients reads this newsletter, along with hundreds of firearms industry company owners and leaders. But I’m willing to risk telling my clients just how, why, and when to change attorneys so that everyone can learn the benefits and the process of transitioning to the right attorney for you.
A relationship with your lawyer is a little like a marriage. When it’s great, everyone’s happy. When there are rough spots, the smart folks work hard to make things work (for clients, that means not hesitating to complain when you think you’re not getting the service you need, or if you think there’s a billing error).
But sometimes, you know deep down that your lawyer just isn’t the right fit, that working harder on “the relationship” will probably be fruitless, and that you’re basically “growing apart.”
Maybe you have a general business lawyer from your hometown, or from an old connection, but your needs for specialists are growing along with your business. Or maybe your company just isn’t getting the tender loving care it deserves from your current law firm (perhaps because they aren’t thrilled to be supporting a firearms industry company for political reasons). Very often, you have a capable lawyer, but he’s retiring soon. If he’s solo, that’s a big concern, and if he’s in a firm, you get to worry about whether the assigned replacement will be suitable.
I’ve often encountered prospective clients who complain that their patent attorney is a nice, smart guy, but he just doesn’t understand firearms, and they get tired of having to explain everything and do half his work.
So let’s say you’ve found a new lawyer that you’re confident will be a more effective investment for your company, but you don’t relish the prospect of “firing” a perfectly nice guy as your patent attorney.
If Lawyers are Heartless, Is it Possible to Break a Lawyer’s Heart?
Lots of folks hate lawyers. But usually, you have at least a soft spot for your own lawyer, even if he’s no longer the ideal lawyer for you. Just like most of us hate politicians, but like our own congressman. There are exceptionally rare cases I’ve seen when a new client take delight in firing their old lawyer. That’s usually because the lawyer screwed up something big, typically losing an expensive lawsuit. But in most instances, doing what’s best for your business can mean giving a perfectly nice guy a bad day. Should this make you hesitate?
My attitude is summarized in one phrase:
Lawyers Don’t Have Clients, Clients Have Lawyers
That simply means that the lawyer-client relationship is “owned” 100% by you, the client. We lawyers are honored to serve at your pleasure, but we know that the next project or task depends on whether you truly believe that we’re the best one to do the job.
And it’s not that we’re inhuman, or have rhino-tough skin. But basically, lawyers gain and lose clients regularly. The best of us gain a lot more than we lose, but we’re used to both, and it’s part of a law practice.
The notable clients I’ve “lost” over the years were due to one of two reasons. One, their dreams came true, they sold the business, and the acquiring business already has its preferred lawyers. Two, at my suggestion that I wasn’t their ideal source any more. The classic situation is when a company grows so big that they have several layers of lawyers in house, and they no longer value the special services I offer. My clients that make me a part of their strategic team on patent and trademark issues tend to get a lot of value from that (it sure beats the annual care and feeding of an in-house lawyer). But those who don’t need that kind of help are usually better off with an entry-lever worker who can be supervised by the in-house lawyers.
I’ve found that working with the clients who value the special things I have to offer is better than working for the “wrong” clients. I’ve never shed a tear over losing a client, because it’s much more fun to work for the “right” clients. And if your relationship with your current lawyer just doesn’t feel right to you, it probably doesn’t feel right to him.
Most business people think that changing lawyers is going to be a stressful and expensive process. I will devote the entire remainder of this newsletter to the process. It will include a complete step-by-step checklist, and a detailed fee structure and calculation spreadsheet. The report can be found at the end of this newsletter.
How to Change Lawyers
Step 1. Decide to do it. Talk to the new lawyer, read his Representation Agreement, and develop the confidence that a switch is the best choice for your business.
Step 2. Tell the New Lawyer. This includes signing the Representation Agreement.
Step 3. There is No Step 3. Seriously.
That’s all there is to it. Your new lawyer will make a cordial contact with your old lawyer explaining that you’ve asked him to take things over. The old lawyer will contact you to confirm that this is what you wish.
If you want, you might prefer to add a Step 2A, and contact your old lawyer with a little note explain that you’ve decided to hire a different attorney that you think better meets you company’s changing needs. Perhaps you’ll mention that the new lawyer has certain specialized capabilities you need.
It might be that you have the new lawyer take on new cases, and let the old one finish up the old cases. This is a fair option, but we’re used to taking up cases, and not charging you for the time it takes us to get up to speed. You even get the added benefit of a second opinion on the old work, and the possibility that new strategic ideas could be incorporated. Resulting in the best from the old lawyer and the best from the new lawyer. In many cases, you get real benefits from changing horses in the middle of the stream.
Important Note: Do not let a new patent issue with the old lawyer until the new lawyer has had a chance to look over the case. This is because once a patent issues, it can no longer be changed, fixed, or improved. I often see old patents I wish I could add new strategies to, but can’t because I got the case too late, after the patent issued. And as I have written in previous newsletters, an important patent that’s likely to be infringed in the next few years should never be allowed to issue without first carefully considering the “keep-alive” strategy that lets us respond powerfully to “weasely” interpretations of the patent by infringers.
Usually, it makes sense to have all your patents and trademarks under one roof. That way, one lawyer has his finger on the pulse of all your company’s intellectual property assets. Otherwise, things can drop through cracks if two law firms are sharing responsibility. When I’m responsible for your portfolio, I’m responsible for everything, so you don’t need to worry about which lawyer is handling which issue.
One-stop shopping usually makes sense, but even if you start a transition, or split the work (maybe patents with one firm, and trademarks with another) you can be assured that both lawyers or firms will work nicely with each other on your behalf. Remember, we don‘t have clients, you have us!
In some instances when there’s an impending deadline, it may make sense to have the old lawyer handle that. But your old and new lawyers are used to handling those situations, and will let you know if we need any decision from you.
I recently got a reminder of one benefit of changing lawyers. A company was acquired by one of my existing clients, and asked me to take over management of their entire patent and trademark portfolio, which had been managed by another firm. The little benefit arose when my sharp-eyed docketing administrator noticed that the old lawyers had mistakenly listed a deadline a year later than it actually was. This prevented that asset from unintentionally expiring, and saved significant costs and headaches.
The Cost of the Transition
When we take on a new client, there can be dozens of patents and trademarks to enter into our specialized calendar system to ensure that you’ll always be notified about every upcoming deadline. That becomes our headache, not yours. (You simply need to answer the emails asking if you wish to continue pursuing or maintaining the assets).
It can be a major effort for us to accurately review the history of each case, and get it in our system. If you have dozens of assets, that can add up. So you may be surprised that our cost for that service is: ZERO. We do this at our own expenses as an investment in the relationship, and because you shouldn’t have to pay extra just to transition to the right lawyer. Of course there will be times when there is “billable” work around the transition, but I’ll let you know in advance about this, and it’s probably work you would have needed even if you stayed with the old firm.
But the key point is that your choice to transition to a new attorney who is better suited to your company’s needs shouldn’t cost you anything extra. Unless there is extra work needed due to the old lawyer’s neglect, you won’t need to budget any extra legal fees for that quarter.
As always, give me a call if you have any questions, especially if there’s anything I can clarify about the painless process of changing lawyers.