What to Consider when Retaining a Reproductive Attorney

by Melissa Brisman, esq

Is your attorney experienced?

Most prospective parents facing infertility and turning to assisted reproductive technologies do not know where to turn for legal advice.  Because reproductive law is still in its infancy (no pun intended!) the number of attorneys working in this area is quite small.  Prospective parents should research the qualifications of any attorney who will assist them on this path to parenthood.  There are many sources on the internet, including web sites and message boards that can offer a wealth of information.  You will be quick to realize that a family law practice differs substantially from a law firm which specializes in reproductive law.  I think we can all agree that professional experience is crucial when deciding to retain the services of an attorney, but the personal experience of the attorney along with how comfortable you are with the attorney can also be an important factor.  Because of the nature of the arrangements prospective parents are contemplating, it is important that they feel comfortable with the attorney they employ.  If you are fortunate enough to find an attorney who not only has professional experience in this field, but someone you feel confident in and at ease with, you will find yourself with an attorney who has the expertise, background and qualifications, both professional and personal, to give you the most up to date information and advice you need while protecting your interests and understanding your particular situation in this unsettled area of the law.

Does the law firm offer any services other than “legal”?

Does it ever end!!!  The long list of things to do when you have started on the road to building a family through assisted reproductive technology seems to be infinite.  How can I find a carrier and/or an egg or sperm donor?  Who will coordinate all the “little things”?  Who will manage the money needed to pay all of these people?  What about insurance?  It goes on and on.  You may wish to consider the “one stop shopping” approach by choosing a law firm which offers all of these services, and more, under one roof.  There are many reasons that this is to your advantage; for starters, it will cut your to do list to a manageable amount, not to mention the fact that the costs of the services can be substantially less than if you were to procure them individually. 

What is the Difference Between Flat Fees Versus an Hourly Rate?

There is a variety of different ways attorneys charge for their services and it would serve prospective parents well to research legal fees prior to signing any retainer agreements with a law firm.  While some attorneys work on a contingency basis, this is not appropriate for the area of reproductive law and you should steer clear of any attorney who would offer you such a payment option in the field of reproductive law.  Most attorneys will charge an hourly rate.  This means that you are billed a set amount for every hour (or part of an hour) that the attorney is working on you case.  Since it is nearly impossible to foresee the amount of time an attorney may need to spend on your case (especially in such an unsettled area of the law), such an arrangement makes it virtually impossible to budget your legal fees.  Given all the unforeseeable expenses prospective parents find out about along the way, wouldn’t it be nice to know, up front, what your legal fees will be, before you even start the legal process?  There are some attorneys who will work on a flat fee basis.  When retaining an attorney for a flat fee, you can take comfort in knowing your legal fee in advance.  Of course there may be additional expenses, such as court filing fees; however, these are usually very minimal when compared to your legal fee. 

Where Is the Attorney Licensed to Practice Law?

Another key factor to take into account when considering working with a reproductive attorney is the states in which the attorney is licensed to practice law.  As you may have discovered when starting to try and find people and agencies to help you, they can come from all over the country.  Since attorneys must be licensed by individual states, how can this work?  It is a great advantage to have an attorney who is licensed in at least one (if not more) of the states in which the parties reside and/or the state in which any medical procedures are being performed.  By hiring an attorney licensed in several different states you can be confident that the advice you are receiving from your attorney is applicable to the state(s) you are working in.  Of course, it is an impossible task to find an attorney licensed in all fifty states; but it is important to find an attorney who is licensed in the state(s) where the actions you are contemplating will take place, i.e. where your clinic is located, where your baby will be born, where one of the parties reside, or where the IVF procedure will take place.

Does your Attorney Have a Knowledgeable and Experienced Support Staff?

When you retain an attorney, you are not just hiring the attorney, but the whole law firm.  One sign of a good attorney is a knowledgeable and confident staff who can assist you when the attorney may not be available or needed.  An attorney with an experienced and qualified staff can make a world of difference as opposed to a “sole practitioner” with no office staff or an attorney with poorly trained or inexperienced personnel.  Although the support staff will not be able to offer legal advice, they can ensure that all other aspects of your case are handled in a timely and professional manner.  If possible, try to find out how long the employees have been working with the attorney, as a high turnover rate may indicate some problems in the office itself. 

 Melissa B. Brisman specializes exclusively in the field of reproductive law