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writing drawingA number of trade secret situations may lead you to seek an attorney’s advice. Attorneys have various specialties and you will need to select a lawyer who is qualified to provide the advice you need.Generally, an attorney knowledgeable in intellectual property law or business law can answer most trade secret law questions. Intellectual property attorneys are familiar with copyrights, trademarks, right of publicity and to some extent with media disputes based on defamation and the right of privacy. Business attorneys are familiar with a range of business issues including trade secrecy. Don’t make the mistake of hiring a lawyer whom you trust but who works in a different field—such as the lawyer who masterfully handled your friend’s house purchase.

In addition to specialties, some intellectual property or business lawyers focus on litigation. Not all intellectual property or business attorneys are litigators. Litigators usually bill on an hourly basis, though sometimes they may take a case on contingency. Under this arrangement, if you win, the attorney receives a percentage—usually one‑third to one‑half—of any money recovered in the lawsuit. If you lose, the attorney receives nothing.

Finding an Attorney

The best way to locate an attorney is by referrals through friends or others in your field. It is also possible to locate an attorney through a state bar association or through a local county or city bar association. Check your local yellow pages and ask the bar association if they have a lawyer referral service. If you are having trouble finding the right lawyer or law firm you can look online to give yourself more options. When interviewing an attorney, ask questions about clientele, work performed, rates and experience. If you speak with one of the attorney’s clients (for example, another website owner), ask questions about the attorney’s response time, billing practices and temperament.

How to Keep Your Fees Down

Most attorneys bill on an hourly basis ($150 to $300 an hour) and send a bill at the end of each month. Some attorneys bill on a fixed fee basis. That is, you pay a set fee for certain services—for example, $5,000 for a license negotiation.

Here are some tips to reduce the size of your bills:

  • Keep it Short. If your attorney is being paid on an hourly basis, then keep your conversations short (the meter is always running) and avoid making several calls a day. Consolidate your questions so that you can ask them all in one conversation.

  • Get a Fee Agreement. We recommend that you get a written fee agreement when dealing with an attorney. The fee agreement is a negotiated arrangement establishing fixed fees for certain work rather than hourly billings. Read it and understand your rights as a client. Make sure that your fee agreement includes provisions that require an itemized statement along with the bill detailing the work done and time spent, and that allow you to drop the attorney at any time. If you can’t get fixed billings, ask your attorney to estimate fees for work and ask for an explanation if the bill exceeds the estimates.

  • Review Billings Carefully.  Your legal bill should be prompt and clear. Do not accept summary billings such as the single phrase “litigation work” used to explain a block of time for which you are billed a great deal of money. Every item should be explained with the rate and hours billed. Late billings are not acceptable, especially in litigation. When you get bills you don’t understand, ask the attorney for an explanation—and ask the attorney not to bill you for the explanation.

  • Be Careful if You Engage a Law Firm. If you sign a fee agreement with a law firm (rather than a single attorney), be careful to avoid a particular billing problem sometimes referred to as multiple or “bounced” billings. This occurs when several attorneys perform the same work. For example, two attorneys at the firm have a 15 minute discussion about your case. Both attorneys bill you. To avoid this, make sure that your fee agreement does not bind you to this type of arrangement. If you are billed for these conferences, send a letter to your attorney at the firm explaining that you only want that attorney to work on your case and that you should be contacted before work is assigned to another attorney at the firm.

  • Watch Out For Hidden Expenses. Find out what expenses you must cover. Watch out if your attorney wants to bill for services such as word processing or administrative services. This means you will be paying the secretary’s salary. Also beware of fax and copying charges. Some firms charge clients per page for incoming and outgoing faxes. Other firms charge a per page copy fee which surpasses any commercial copy center. Look out for these hidden expenses in your fee agreement.

  • Don’t Take Litigation Lightly. As a general rule, beware of litigation! If you are involved in a lawsuit, it may take months or years to resolve. Some go on for decades. It often costs $10,000 or more and the only ones who profit are usually the lawyers. If you’re in a dispute, ask your attorney about dispute resolution methods such as arbitration and mediation. Often these procedures can save money and they’re faster than litigation. If those methods don’t work or aren’t available, ask your attorney for an assessment of your odds and the potential costs before filing a lawsuit. The assessment and underlying reasoning should be in plain English. If a lawyer can’t explain your situation clearly to you, he probably won’t be able to explain it clearly to a judge or jury.

What Is a Retainer?

A retainer is an advance payment to an attorney. The attorney places the retainer in a bank account (in some states, this must be an interest‑bearing account) and the attorney deducts money from the retainer at the end of each month to pay your bill. When the retainer is depleted, the attorney may ask for a new retainer. If the retainer is not used up at the end of the services, the attorney must return what’s left. The amount of the retainer usually depends on the project. Retainers for litigation, for instance, are often between $2,000 to $5,000.

Mad at Your Lawyer?

In many states, such as California, a client always has the right to terminate the attorney (although this does not terminate the obligation to pay the attorney). If you don’t respect and trust your attorney’s professional abilities you should switch and find a new attorney. Beware, though, switching attorneys is a nuisance and you may lose time and money.



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(c) Richard Stim & Stephen Fishman