Choosing the right lawyer can make a big difference to the success of your practice.
A good lawyer will help you do things other practices avoid because of a misunderstanding of the law, but will also keep you from doing things that “everyone is doing” when they are illegal. The best lawyers will do this without costing you an arm and a leg. Here are some thoughts about retaining counsel.
When hiring a lawyer for a specific problem, ask them to describe their experience with that problem. Just like medical professionals, lawyers specialize. You don’t want someone like me writing your will, or handling your tax dispute. I have colleagues who do that. Choose an expert. In good-sized law firm, that expert should be able to connect you with experts in other areas. If one person claims that they can “do it all” for you, be skeptical. The fact of the matter is that there are so many areas of law that it isn’t very realistic for one person to know it all. Even within the narrow specialty of health law, the incredibly large volume of regulation makes it inconceivable that one person could know it all well.
Ask who the lawyer represents. Many health lawyers primarily represent large health systems, while others represent physician groups. Many local lawyers will work with a healthcare client or two, but primarily represent other businesses. Ask the lawyer to describe the firm’s practice. How much of the practice is focused on health law, and who might be a typical client?
Ask about risk tolerance, and know your own. The safest thing for a lawyer to say is “no, that’s illegal” or “you will lose this appeal.” Some lawyers, perhaps most, are risk adverse. That is not necessarily bad; staying out of jail is good. But you want to understand the perspective of the person giving you advice. Do they get a kick out of Russian roulette or do they think crossing the street is too risky. I try to tell people what the government’s enforcement position is, and then explain whether I think the government is right. I rarely call the government for an opinion, and if I do, I still review the underlying law. There are other lawyers who rely almost entirely on what the government says. You have to decide which approach you want, and then know what approach your lawyer will take. While I will tell clients what I would do in a particular situation, that isn’t the right test. You need to know the risks and decide how much risk you feel comfortable taking. You may opt to avoid any action that the government might criticize, but there might be some risks you are willing to take, particularly if your lawyer can explain that there is a strong legal argument available. The best lawyers will really help you assess the risk.
You can and should ask how much something will cost. When you do, don’t focus on the hourly rates. A low hourly rate is meaningless when the lawyer works many hours, and a high rate isn’t a problem when the lawyer is efficient. Ask for a total cost. Then find out if it is an estimate, or a guarantee. One administrator expressed pleasant surprise at receiving a bill for $850 for an email explaining how the group could share an MRI with another practice. The administrator explained that she had received a ten-page memo exploring the question from their “regular” lawyer, along with a bill for $10,000. She found her lawyer’s letter difficult to read, and believed the letter stated that it would not be possible to share the MRI. The administrator assumed that since my hourly rate was much higher than that of her lawyer, my bill would be at least as high. She was shocked that mine was actually more than 90 percent lower.
Don’t be afraid to hire someone who is located far away. Technology, including Skype and email, makes it very easy to work with counsel at the other end of the country. It is quite easy to perform compliance training for a group 1,500 miles away using online software. You may think “don’t I need to hire only lawyers licensed in this state?” For some things, that matters, but that list is pretty small. To appear in a state or federal court, you need a local license, or you must receive a waiver. But for many of the things lawyers do, you don’t require any law degree. If you find an out-of -state lawyer you like, use them. In situations where it is necessary, that lawyer can always consult with a lawyer licensed in the state.
It is completely acceptable to treat your lawyer like you would a buffet. You can use some lawyers for some issues and others for other issues. You can use a great deal of legal services at some times and not at others. A good lawyer will recognize this, and even encourage you to do so. They may even tell you “I won’t spend the money looking at this.”
Finally, if you aren’t happy with something, speak up. A good lawyer will try to keep you happy. Don’t be shy. If the advice was too slow, or too expensive, speak up. That strategy can be particularly effective when you are friendly about it.
A good lawyer is instrumental in helping you make wise choices. It is worth the time to choose wisely when selecting one.
About the Author
David M. Glaser, Esq.is a shareholder in Fredrikson & Byron’s Health Law Group. David assists clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Monday and is a member of the RACmonitor editorial board.
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