How to Hire an IP Lawyer
Two good blog posts about hiring an IP lawyer popped up yesterday and today.
The first, from Dean Wesley Smith, clears up a few misconceptions about lawyers:
First off, unlike agents, they are bound by rules, very tight rules of behavior. I know lawyers have been made fun of in this area, but they are bound and insured, where agents have no rules they follow, even though agency law puts some rules on them. They ignore them completely and writers have been afraid to take them to court. All of this is becoming even more clear with the trend toward agents become publishers.
. . . .
Third, you can have a lawyer help you as much or as little as you would like. They can actually do the negotiating for you, or just advise you on what the contract says and what to ask for. You are in control. You do not give that control to a stranger.
Link to the rest at Dean Wesley Smith
The second is from scifi and mystery author Annie Reed, titled, “Lawyers Are Just People, Too.” As a former current paralegal, Annie would know.
Excerpts:
I’m here to tell you that hiring an attorney doesn’t have to be a stressful experience. Sure, lawyers happen to have expertise in a subject matter that a lot of writers don’t, and that can be intimidating. You can cut down on the intimidation factor if you keep a few things in mind when you decide to hire a lawyer.
1. You can shop around for an attorney just like you would for any other consultant you’d hire for your business. Hourly rates differ, same with amounts of retainers. Some attorneys don’t ask for a retainer at all. Some attorneys offer a flat, set amount based on the type of work instead of number of hours worked. If the attorney you talk to gets miffed because you tell him you’re going to talk to a couple of other people before you decide who to hire, chances are that’s an attorney you don’t want to hire.
2. Likewise, you don’t want someone who talks down to you or whose office staff is rude to you. A lot of people are used to rude behavior from legal and medical professionals, but you don’t have to put up with it. There are more and more intellectual property attorneys out there to choose from. Hire one you feel you can get along with.
Link to the rest at Scribblings, the Writing of Annie Reed
The only addition Passive Guy would make to the excerpts above is that most lawyers are insured for professional liability AKA legal malpractice.
Rules on insurance vary by state (and PG doesn’t know about all 50 states). Some states require the attorney to automatically disclose his/her insurance status to clients, but PG doesn’t think most do.
For example, California (which tends to have the most detailed rules about everything) doesn’t require professional liability insurance for attorneys. However, if an attorney anticipates representation will take more than four hours, California requires the attorney to disclose if he/she is not covered by professional liability insurance.
So, for California attorneys, if the attorney says nothing, they do have insurance. If they don’t have insurance and if they perform more than four hours of work, they’ll tell you. (PG senses eyes rolling back in heads all over the world.)
The reality is that most IP attorneys will have insurance. Attorneys who handle drunk driving and small-time criminal cases may not have insurance.
As with anything else, if insurance is a concern, ask. PG would have been happy to tell anyone but doesn’t remember anyone asking. As Annie tells us, since lawyers are human, some lawyers might see a red flag if a prospective client comes in and the first question they ask is about malpractice coverage.
Professional liability insurance is going to cover serious errors by an attorney that cost a client serious money. Judgment calls that could go either way won’t generate a malpractice case even if they do cost the client money.
Serious money is usually a prerequisite for a legal malpractice claim because attorneys specializing in malpractice litigation of any type work on a contingency fee basis – they collect a percentage of any money received, but if no money is received the client owes no attorneys fees.
Contingency fees mean lawyers are able to represent clients who can’t afford to pay attorneys fees out of pocket, but these attorneys won’t take a case without serious losses because litigation is almost always necessary. Malpractice litigation takes a lot of time and requires high out-of-pocket litigation costs, which the attorney will advance.
PG once spent a long time trying to help a client locate a medical malpractice attorney where the doctor’s error was obvious, but the injury – a crooked finger – was not serious, given what the client did for a living. As he thinks about it, this injury would have been much more disabling for a professional author because it would have taken one typing finger out of action.
If an attorney engaged in the sorts of misbehavior some agents do – not following the author’s instructions, not making proper payments or accounting for royalties, never returning phone calls – an author’s most effective remedy would probably be a formal complaint with the professional ethics committee of the state bar. Such a complaint captures any attorney’s attention because the ethics committee can revoke or limit his/her ability to practice law.
One other point Passive Guy hasn’t seen anyone make in agent vs IP lawyer discussions: You can always fire your lawyer for any reason or no reason. A phone call, letter or email will do it. You will be obligated to pay legal fees incurred prior to firing, but there will be no ongoing entanglements.
PG recently looked at an agency agreement he’ll be blogging about soon. This agreement not only gives the agent life-of-copyright agency fees, payable through the agency, for the books the agent sells, but also gives the agent life-of-copyright rights to negotiate sales of subsidiary rights even after the author terminates the agency agreement.
No lawyer is perfect and, like agents and authors, a few are jerks or dopes, but if you choose the wrong lawyer, you’re not stuck with them forever.
, Amazon will pay Passive Guy a small affiliate commission on any of your purchases. 
I have a lot of consulting experience, an literary agents seem like a peculiar form of consultant. Do they typically carry E&O insurance? Are their responsibilities sufficiently well understood for them to be liable under similar circumstances where E&O would kick in for any other consulting professional?
Rich
That’s a good question, Rich, and I don’t know the answer, but will see what I can find out.
Thank you so much for your answer to my earlier question on which type of lawyer to hire… and then, thanks also for the information in this post. Great timing.
And not to butt in on the earlier comment, but, E&O insurance…? Is that errors and omissions?
Maril – You are correct that E&O means errors and omissions.
I mentioned the ability to fire your representation on DW Smith’s blog.
We think so much alike…. I even pointed out that with the lack of books going out of print/infinite shelf life on ebooks, being tied to a specific representation for the life of a book is um…absurd. Goals, visions, and needs are going to change 5, 10, 15 years down the road. Why be stuck with an agent who isn’t interested in helping an old book?
Thanks for the mention! Only one thing — unless you know something I don’t, I’m still a paralegal. *g* And a writer. And a publisher. No wonder I never get any sleep.
Annie – You’re not fired! Sorry for the mistake. I’ll fix it.
[...] More on the subject from Passive Guy, who is writing a book on IP contracts that you should watch out [...]
With your permission, I would like to add a link to this post to my Literary Lawyer Directory during my next website update.
Laura – I’m happy to have you link to any of my posts.