Not All Attorneys Are Created Equal: Are You Being Advised or Upsold?

There are two kinds of attorneys. One just takes your order. The other asks you questions and provides real counsel.

The order-taker hears what you say you want, prices it out, and delivers it. Fast, painless, and sometimes exactly wrong for you. On the flip side, the counselor slows down first. What are you actually trying to protect? What does your business look like in three years? What can you responsibly spend right now? Only then does the work begin.

Here is the problem with ordering off a menu you have never read, you don't know what's on it. For example, you come in asking for a trademark because a trademark is the word you've heard. Fair enough. But what do you have? Say you have a business name written in a distinctive font. Do you need two trademark registrations, one for the words, and one for the stylized logo? It depends. Is the font custom, or did you license it from a type foundry like everyone else? Did you design the mark yourself, or did a contractor design it (and who owns it)? Is the styling doing real work in the marketplace, or is it decoration you'll redesign in eighteen months? Would it genuinely hurt you if a competitor in an unrelated field used that same typeface?

Sometimes the answer is, “Yes, file both.” A standard character mark generally provides the broadest protection for the words themselves, while a design mark can provide protection for the particular stylization or typeface (if that visual stylization is critical to the brand). Other times, the better answer is to file only one and put the money you save toward something that will provide more value.

I unfortunately once worked somewhere that, from what I saw, operated the first way. It became very clear to me that the general goal and business model was to sell whatever the client was willing to agree to, rather than taking the time to figure out what the client actually needed or could reasonably afford. Nobody asked whether the client truly understood their options. Nobody said, “Honestly, you don’t need that.” I watched people pay for products and services that provided little to no meaningful benefit to them, and I watched others leave with something that simply wasn’t a good fit for their circumstances. That is not how attorneys and law firms should act.

What really drove the point home for me was that I was actually reprimanded at one point for giving a client my honest legal advice because, ultimately, following that advice meant the client spent less money. That experience stuck with me. I have a hard time accepting a model where giving a client the advice that you (as their attorney) think is genuinely in their best interest can be viewed as a problem simply because it results in a smaller bill. It wasn’t even that I tried to talk the client out of spending more money. All I did was explain to them in plain English what they were buying and what they were getting. The client ultimately decided that it wasn’t worth the extra money.

That experience has had a significant impact on how I approach my own work. I would much rather tell a client that I don’t think they need something than sell them something they don’t need. To me, the job is to understand the client, identify what actually makes sense for them, and give them honest advice, even when the answer is to do less. If I can save a client money while still accomplishing what they actually need, I consider that a success, not a missed opportunity.

A bad attorney upsells you on filing both marks without ever asking whether you actually need both. A good attorney asks the questions first, understands what you are trying to protect, and then tells you which approach makes the most sense for your particular circumstances, even when the right answer means a smaller invoice.

You are allowed to expect that. You are allowed to ask why. If your attorney can't explain the reasoning in plain enough language so that you can determine the value in something, then you need a new attorney.

This post is general information, not legal advice, and does not create an attorney-client relationship.