Selecting a Lawyer ►
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CONTENTS:
When
do I need a Lawyer?
Many
people believe they need a lawyer's services
only to solve a problem or to get out
of a difficult situation. Often, the best time to see a lawyer is not
when you are in
legal trouble, but before that trouble occurs.
Preventive legal work is one of the
most valuable services a lawyer can perform. By eliminating potential
problems, preventive
legal work can save you time, money and needless worry.
Some
of the circumstances which may require
professional legal assistance are:
- Buying
or selling real estate.
- Signing
a lease or contract with major
financial provisions.
- Marriage,
divorce or adoption.
- When
a lawsuit is brought against you, or when
you want to bring a lawsuit.
- If
you are arrested or charged with a crime.
- When
starting a business.
- Planning
for the distribution of your property
after your death.
- When
you have been injured, either on the job,
or in an accident, or as the result of another person's negligence, or
because of a defective or unsafe product.
- When
making an appearance, application or
appeal to a government agency or board.
- When
planning a living will or durable power of
attorney for health care.
How
do I select a lawyer?
If
you need legal assistance but do not have a
lawyer, there are several sources that
you may use to help you locate and select a lawyer:
Recommendations from friends,
family members and co-workers can be helpful,
particularly if the individual you ask for a referral has had the same
type of legal
question as you have.
Legal Services offices, also
called Legal Aid in some areas. These are federally
funded programs which offer free legal services, in civil matters only,
to individuals who
meet federal poverty guidelines. There are headquarters offices in
Sioux Falls, Rapid City
and Mission, with several branch offices. There is a referral resource
listing on page 39
of this booklet.
Lawyer Referral Services
located in Pierre will send you a list of lawyers to
choose from. You may have an initial consultation for a small or
reasonable fee. After
that, you decide whether to retain that lawyer for further
representation.
You
can review the Lawyer
Referral list online
or
may call 1-800-952-2333 toll free for lawyer referral services
Yellow Pages and other advertising
is becoming more commonplace among lawyers.
Although few South Dakota Lawyers list their specialties, some have
begun doing so. If you
select a lawyer for a specialty, keep in mind that there is no
guarantee by the State Bar
or other body that such lawyer has any more knowledge or experience in
the area listed
than any other lawyer.
Legal directories, such as
the
Martindale-Hubbell Law Directory, can be found in
some public libraries. These contain biographical information on
lawyers in each state,
and list lawyers by state and city.
What
should I look for in a lawyer?
Among
other things, be concerned about:
- The
lawyer's reputation in the community.
- The
lawyer's experience with your type of
legal
problem. (Don't hesitate to ask about this on your first visit.)
- The
lawyer's communication skills, shown by a
willingness and ability to talk to you in language you can understand
and to keep you informed about the progress of your case,
responsiveness to your questions and concerns. Let your lawyer know, on
the first visit, that these qualities are important to you.
- The
fees that will be charged. (See the Fees
section )
What
should I expect when I hire a lawyer?
You
are hiring a lawyer to work for you, as
your
advocate. You should expect your
lawyer to:
- Confer
with you to pinpoint the problem.
- Research
and analyze all available facts
and
information relating to your problem.
- Interview
those involved.
- Prepare
legal arguments for presentation in
court, if litigation becomes necessary.
- Negotiate
a settlement if both sides can
reach
a fair agreement.
- Keep
you informed about what is going on in
your case and answer your questions.
- Discuss
fees with you at your first visit,
and
come to an agreement about the way in which fees will be paid.
- Be
candid with you about your problem, your
prospects for success, the time it will take, and the advisability of
accepting any settlement offered.
- Keep
in confidence anything you say.
- Prepare
all necessary legal documents.
What
will my lawyer expect from me?
Upon
being retained as your legal counsel,
your
lawyer will expect that you will:
- Be
completely honest about all facts
concerning
your case, whether favorable to you or not.
- Be
on time for appointments and not take
up an
excessive amount of time with visits or phone calls relating to minor
details or petty matters.
- Take
your lawyer's advice.
- Understand
that no lawyer can guarantee
results
in a contested matter.
- Be
patient and understanding that legal
matters
are rarely "open and shut" cases; they require time and research.
- Call
for appointments rather than just
dropping
in without warning.
- Pay
a reasonable fee for the work
performed.
Can
I change lawyers?
You
may discharge your attorney simply by
informing your attorney of your wishes.
Giving notice is a matter of courtesy and may be necessary so that if a
lawsuit has been
filed, the lawyer may ask the court for permission to withdraw.
Even
if you discharge your lawyer, you are
still
obligated to pay for any services
which have already been performed on your behalf, and costs which have
been incurred.
Why
can't I handle my own legal problems?
It
is not illegal for you to represent
yourself in
court, nor to handle your own legal
matters. There are also "kits" and "forms" which some people use for
such matters as getting a divorce or making a will. South Dakota
lawyers and judges advise
against these do-it-yourself products because they are not designed to
take into
consideration individual differences and complications which may arise
with any legal
matter. Judges and court personnel are not allowed to give you any
legal advice as your
case progresses. Lawyers are trained to provide professional legal
assistance to you, to
be aware of all court procedures, filing requirements, deadlines and
other details which a
non-lawyer could easily overlook. Such products are not updated to
reflect changes in the
law from year to year.
How
do lawyers set their fees?
Legal
fees are determined by a number of
factors
including the amount of time spent on
your problem; the lawyer's ability; experience and reputation; the
results obtained;
overhead costs such as secretarial and paraprofessional services,
investigators and other
personnel, library and other research materials; and your ability to
pay.
The
primary types of fee arrangements are:
Hourly rate,
in which
the fee
is based upon the amount of time required.
Fixed fee,
in which a
flat fee
is charged for a specific routine service, such
as an uncontested divorce, a simple bankruptcy or a will.
Contingent fee, in
which the
lawyer receives a percentage of any amount
recovered on the client's behalf, plus any out-of-pocket expenses. If
no recovery is made,
the client pays only the expenses.
Retainer,
in which the
client
makes a "down payment" and future costs
of legal services are billed against that amount. Many lawyers require
a retainer in
certain types of legal matters.
What
if I have a complaint against my
lawyer?
South
Dakota lawyers are governed by the
South
Dakota Rules of Professional Conduct.
Failure to follow the Rules can result in disciplinary sanctions
ranging from a private
reprimand to disbarment.
Many
disagreements between lawyers and
clients are
simple misunderstandings or failures
to communicate. Often these can be resolved by discussing the problem
directly with your
lawyer. If this approach fails or is impractical, or if you believe
your lawyer has acted
improperly or unethically, you may send a written complaint to the
Disciplinary Board, The
State Bar of South Dakota, 222 East Capitol, Pierre, SD 57501
The
Disciplinary Board will send a copy of
your
complaint to the lawyer and require
that he respond within a specified time period. When the response is
received, the Board
will conduct a further investigation to determine whether the lawyer's
conduct has
violated the Rules.
Normally,
disputes over lawyer's fees are
not
matters which are properly considered by
the Bar's disciplinary system. However, the Rules do provide that fees
may not be
"clearly excessive" and that attorneys may not engage in conduct which
involves
fraud or misrepresentation.
The
Bar's disciplinary system cannot award
money
damages nor reimburse clients for
losses resulting from a lawyer's misconduct. Any civil remedy you may
have against the
lawyer is separate from the disciplinary process
The
State Bar of South Dakota did
establish a
Client Security Fund in 1973 to reimburse
clients, in whole or in part, who have suffered financial loss as a
result of dishonest
acts of their lawyer. A number of conditions must be met before any
claim will be
considered for payment from the fund.
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