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What questions should our co-op board ask when hiring a new attorney?

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Question:

Our co-op board is hiring a new attorney for the building. What questions should we ask to make sure they're qualified, and a good fit?

Answer:

Before you hire an attorney to represent your building, you'll want to suss out some important information, such as their pricing, experience level, potential conflicts, and chemistry with your board, says Steven Wagner, a co-op and condo attorney with Wagner Berkow LLP and a longtime board member of his own 420-unit Manhattan co-op.

Below, key topics to touch on to ensure that your new attorney can handle anything unpleasant surprises that may arise for the building—and won't be causing any of their own:

1. What's their experience level and area of expertise?

Get a sense of how long your attorney has been practicing and whether their focus has primarily been co-op and condo buildings, or something else.

"They should be practiced in the field for a minimum of five years," says Wagner. "And you want someone who devotes a very substantial amount—or all—of their practice to co-ops and condos."

While it's not necessarily bad if they work in other areas, it's important that the attorney has a deep familiarity with the type of issues that tend to arise for boards and how best to handle them. To that end, it's also important to ask what kind of work they'll be able to handle.

"For example, my firm handles litigation, closings, refinancing, human rights issues, contracts, zoning issues, building and Certificate of Occupancy issues, housing court, and Supreme Court," says Wagner.

As an extra way to check into their credentials, you could also check their rating on Martindale-Hubbell, which provides peer ratings from other attorneys in the field.

2. How much do they charge—and how are their rates structured?

You were probably already planning to ask about costs, but within that, there are some extra nuances to consider.

Specifically, it's important to know whether they charge by the hour, or are hired on a monthly retainer. And if they are on a monthly retainer, will there be services that come with extra flat fee charges?

"It's fair game to ask what the options are and whether they have any flat fees," says Wagner. "For instance, services such as closings, and the initial papers in commencing lawsuits such as non-payment proceedings or lien closures, we do those on flat fees."

3. Who do you contact when problems arise?

When your board is establishing a relationship with a potential new attorney, it's also important to get a sense of process.

"Ask who you should call if you have a question, who will be handling those matters, how to best communicate with them, and what the expected response time should be," says Wagner.

For instance, you may have one point person at a firm who's familiar with all matters relating to your building. Or it's possible that you can expect associates at the firm to handle things as they come up.

"In my firm, we try to have whoever is the least expensive person capable of handling a matter handle it," says Wagner. "Associates bill anywhere from $275 to $325 per hour, and partners are $400 to $495. But some clients still only want the partners."

It's also smart to find out if everyone handling issues from your building will be working in-house at the attorney's firm, or whether they'll be referring out some of the work.

"Some attorneys have these relationships where they work with people who aren't employed by them, and they refer everything out, basically," says Wagner. "You just want to be aware who's handling it, who's doing the work."

4. Do they work with your managing agent?

Though it's not necessarily a bad thing if an attorney was referred to you by the managing agent, it's wise to do a bit of probing to make sure that the managing agent doesn't provide the bulk of their business—so that if conflicts arise, you can be more certain they'll have your board's best interests as their top priority.

"Lots of managing agents work with attorneys, and they're often very good," says Wagner. "But sometimes you get an attorney who has an enormous amount of business from a single managing agent, and you want to make sure that that attorney is independent, for instance, if the managing agent doesn't perform properly, that the attorney will give you all the information and that their answers won't be shaded by their business relationship."

One way to figure this out is to ask how many buildings the attorney represents that the managing agent also works on. "It's not necessarily bad if there are a few others, but if it's 30 or something like that, [that's a red flag]," he says. Another question is whether they get referrals from other managing agents. If their client base is more diversified, they're more likely to be neutral.

A situation that should absolutely be avoided: hiring the attorney from your managing agent's "in-house" law firm. "There are some managing agents who are lawyers," says Wagner. "That's not something I would ever recommend. You don't get the checks and balances, or the independent view from an outside attorney."

5. Are your priorities aligned?

As with any type of interview, it's important here to assess whether your board has chemistry with a potential attorney. "Figure out if you think this is somebody who you'd like to work with," says Wagner.

And a key part of this equation will be determining their MO as an attorney—do they prefer to do things the litigious way (meaning your board could wind up in somewhat frequent court battles), or skew more towards finding ways to settle?

"My approach as an attorney is not to encourage clients to litigate whenever possible, even though I have a long career of litigation," says Wagner. "My philosophy is that you don't litigate unless you're going to make a lot of money, or you have no choice."

On the flip side, if your board prefers, there are also plenty of attorneys who pride themselves on high-profile court victories. "I try to avoid those situations for my clients," says Wagner. "I don't think that's what you want to do as a board, to spend that kind of money and gain that reputation. It doesn't mean we won't litigate and do well, but rarely do you need to."

"It's sort of the idea of 'speak softly and carry a big stick,'" he says. "I want to help them become better boards, and need lawyers less."


New York City real estate attorney Steven Wagner is a founding partner of Wagner | Berkow with more than 30 years of experience representing numerous co-ops, condos, and individual owners and shareholders.  To submit a question for this column, click here. To ask about a legal consultation, send an email or call 646-791-2083.

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