By Lee R. Schroeder Contributing Columnist
April 5, 2014
Some business owners and managers are less than happy with the service received from attorneys. The complaints usually stem from a perception that the attorney is too expensive, too slow or creates unnecessary roadblocks for “simple” tasks.
Sometimes, dissatisfaction with a business's attorney is justified. However, dissatisfaction often stems from a misunderstanding of how the attorney is expected to act as a legal professional.
Attorneys are expected to exercise their own professional judgments, in addition to following clients' advice. In other words, in addition to “doing,” attorneys are expected to think, analyze and advise. Therefore, attorneys are very different from many other service professionals. Many attorneys communicate upfront that what they provide is more than just “doing,” but confusion can persist despite good communication.
Obviously, attorneys are no smarter than the general population. However, an attorney is usually expected to speak up when a business client wants to do something that hindsight may ultimately view as imprudent. That “independent professional judgment” is a value-added component to what an attorney “does.” Attorneys are not perfect at this, and it is expensive (time-wise and money-wise).
For example, a client may initially ask me to deed the client's property to a family member, which seems “simple.” However, if there is a mortgage on the property, that mortgage likely includes a “due on sale/transfer” clause. That clause can make the mortgage due in its entirety when ownership of the property changes, unless the client has prior written approval from the mortgage holder. Also, any transfer of real estate can have serious tax consequences.
When a client asks for a deed, that client may not know about the above-mentioned tax and mortgage implications. Therefore, I may search title to the property, determine if there is a mortgage on the property, determine if the aforementioned clause exists, request and secure prior, written permission of the mortgage holder (if necessary), and then prepare the deed. Although I typically have explained all of this to the client before I am hired, impatience can creep in for the client. Before I finish, a client may ask, “Why is this taking so long? All I wanted when I first came in was a deed.”
Unfortunately, when attorneys undertake this responsibility of exercising independent professional judgment, clients can misperceive that the attorney is delaying or simply trying to position the attorney to be hired for more work to make more money.
Similarly, sometimes the attorney reaches a conclusion about the advisability of an action only after “sleeping on it” for some period of time. In such contexts, clients can ask, “Why didn't you raise that issue when I first hired you?”
“Independent professional judgment” is the thinking, analyzing and advising that makes attorneys look like smart forward-thinkers when problems are avoided in advance.
Some attorneys do charge too much or take longer than necessary to accomplish their work. However, many of the “delays” and “roadblocks” perceived by clients are investments in thinking, analyzing and advising that pay off for clients months or years later.
Lee R. Schroeder is an Ohio licensed attorney with Schroeder, Blankemeyer and Schroeder LLP in Ottawa. He limits his practice to business, real estate,estate planning and agriculture issues in northwest Ohio. He can be reached at firstname.lastname@example.org or at 419-523-5658. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.