How to Hire a Banking and Finance Attorney
1. Confirm industry-specific finance experience and regulatory knowledge
Ask for examples showing the attorney’s work in the exact area you need (commercial lending, syndicated loans, asset-based lending, project finance, structured finance, securitizations, regulatory compliance, bank transactions, debt workouts, or fintech payments). Get redacted deal documents or briefs they prepared (loan agreements, security agreements, intercreditor agreements, participation agreements, opinion letters, or regulatory filings) and ask which regulations they navigate routinely (Federal Reserve and OCC guidance, Dodd‑Frank provisions, Truth in Lending, UCC Article 9, BSA/AML rules, state usury and licensing laws). For bank-side matters, confirm knowledge of bank prudential rules, capital and liquidity constraints, and typical internal credit‑committee processes; for borrower-side matters, confirm experience negotiating covenants, carveouts, and collateral packages. If your work touches cross‑border financing, ensure they have experience with foreign-law counsel coordination, local security perfection rules, and tax/withholding considerations in the relevant jurisdictions.
2. Vet transactional skillset, documentation quality, and risk allocation approaches
Banking deals are executed on paper, closely review sample documents to evaluate drafting quality, clarity of definitions, enforceability of covenants, and mechanics for remedies (events of default, acceleration, foreclosure/realization, and workout triggers). Ask how they allocate key risks: representations and warranties scope and survival, covenant baskets and materiality qualifiers, intercreditor subordination mechanics, perfection and priority strategies under UCC Article 9 or local equivalents, and lender remedies including foreclosures, appointed receivers, or enforcement in insolvency. For syndications and participations, confirm experience drafting agency agreements, transfer restrictions, and secondary‑market provisions. Probe their negotiation posture, do they push for borrower-friendly flexibilities (covenant-lite language, limited default cures, grace periods) or lender protections (springing covenants, cash dominion, stringent reporting)? Request examples of deals where their drafting materially preserved value (avoided roll‑ups, tightened collateral descriptions to prevent avoidance, or added practical cure mechanics).
3. Require clear staffing, phased fee structure, and contingency planning for enforcement and regulatory issues
Get a written engagement identifying team members (partner, senior associate, paralegal), estimated hours by phase (due diligence and document drafting, closing mechanics, post‑closing compliance, and enforcement/workout), and a phased fee schedule, flat fees for standardized documents, capped fees for drafting and negotiation rounds, or blended hourly rates for complex transactions. Insist on explicit allocation of third‑party costs (title searches, recording fees, foreign counsel, filing taxes) and pre‑approval thresholds for large expenses. For deals with enforcement risk, require a recovery and enforcement plan: how they will pursue remedies on default (foreclosure, UCC sales, appointment of receiver, judgment enforcement, or cross‑border asset restraint), timeline estimates for remedies, and coordination with insolvency practitioners if debtor restructuring is likely. For regulated matters, confirm they will handle required filings and notices (bank regulator notifications, change‑of‑control filings, money‑transmitter licensing, or CFPB reporting), maintain privilege and confidentiality for sensitive diligence, and implement compliance checklists post‑closing (AML/KYC, covenant reporting calendars, covenant compliance testing). Clear staffing, transparent fees, and a mapped enforcement/regulatory playbook reduce execution risk and cost overruns.
