Choosing an attorney is similar to choosing any professional. Narrow the field down to a small list of referrals from people you trust, and then choose a firm or individual from that list based on your own particular criteria. For an attorney, a referral from another attorney can be particularly helpful, and I have forwarded a couple of suggestions to this reader.
I will first note that most small businesses can benefit from representation by a small business attorney with experience in that particular business. Whether you are an auto mechanic or a dry cleaner or a gas station owner, you will be subject to a regulatory structure that is unique to your industry, and it will be helpful if your attorney is familiar with the landscape.
A maritime business may require more specialized representation than the corner grocery store because of the unique procedural and legal characteristics that are common in the practice of maritime law. A charter business, for example, will be subject to regulation by the U.S. Coast Guard, the charter vessels will be subject to maritime liens and mortgages that have little in common with land-based liens, and the company may face unique challenges with its maritime employees. These issues must all be considered in addition to the challenges faced by any small business.
After the business owner has identified a short list of attorneys who are generally experienced in the representation of a maritime business, the list may be narrowed down by asking the attorney to explain the issues they believe are important in the representation of the particular business. Here are a few issues that should come up during that discussion.
What is the lawyer’s own business experience? A lawyer who operates his or her own firm will have a lot more understanding about the issues that confront a small business owner. I will again point out that this is only my opinion. There are plenty of great business lawyers who have never operated a business, but I believe that those attorneys may not be as sensitive to the issues that confront a small business.
Next, what is the lawyer’s approach to legal advice vs. business judgment? A good business lawyer needs to understand his or her role in a transaction. The attorney will want the business owner to know the legal consequences of a particular action, but a business owner may have a reason for ignoring the attorney’s advice and moving ahead anyway. Business judgment may conflict with legal advice, and a good lawyer needs to allow a business owner this kind of freedom (assuming of course that the business owner’s actions are legal).
Another important consideration is the distribution of a lawyer’s work between litigation and transaction work. Business litigation is a business lawsuit. Transaction work is the drafting of contracts, leases, etc. In big law firms, the lawyers specialize. In those firms, transaction lawyers are rarely in court, and litigators are always in court. In my opinion, a transaction lawyer should also have a lot of litigation experience, because a lawyer cannot draft a good document without understanding how something ends up in a lawsuit. A well-drafted contract will help a business owner to win a lawsuit. A great contract will keep him or her out of the lawsuit entirely.
Finally, does the lawyer write contracts in English, or is he or she bogged down with “legalese?” This is important. A contract is a roadmap to a transaction, and the parties need to understand it in order to properly perform their obligations and stay out of trouble. It is true that certain legal issues in every contract or agreement must be addressed through the use of specific language that may be difficult for a layperson to understand. But an attorney who represents a small business needs to be sensitive to this issue, and he or she should strive to draft an agreement that is, to the extent possible, drafted in simple English.
Again, these criteria represent one lawyer’s opinion, offered in response to a hypothetical question. I certainly do not mean to disparage any attorney who does not fall within my list, but I do believe that this will offer a good starting point for the owner of a maritime business who is facing this question.