The Initial Client Interview Introduction
Transcript of The Initial Client Interview Introduction
Copyright © 2011 by TAG Academy, LLC; Robert U. Sattin. 1
NOVEMBER 10-11, 2011
The Initial Client Interview
Introduction What we will cover:
The goals of the meeting; The ethical, professional and business concerns
to consider before you meet with a prospective client, including the 8 ethical rules you need to know;
The practical techniques of handling the interview, including what to ask and how to handle the meeting.
The Initial Client Interview
Introduction Why is the initial client interview a critical
professional skill?
“Though it would certainly be a plus to be able to identify bad-news clients before taking them on, it’s not as if they walk in the door wearing a shirt that proclaims ‘I’m about to become your worst nightmare.’
Instead, a lawyer who wishes to minimize the chances of picking a lemon should tailor his or her intake process to increase the odds of ending up with something a bit sweeter”. Sullivan, “Canning Your Client”, ABA Journal, March 2008, p. 52.
The Initial Client Interview
Introduction Why is the Initial Client Interview a critical
professional skill?
“Rather than practice area, conflicts of interest and problems related to poor client quality—issues that cut across all practice areas and geographic locations—remain the major causes of lawyer liability.”
Annual Report, 2007. Attorneys Liability Insurance Society, Inc. (ALAS)
The Initial Client Interview
Introduction What are the lawyering skills needed for the
initial client interview? Presentation skills Marketing skills Financial statement understanding Business owner skills, i.e. understanding what it
means to be a partner. Payment concerns, capacity to do work, etc.
The Initial Client Interview
Identifying The Issues Ethics Rules:
Rule 1.1 Competence Rule 1.3 Diligence Rule 1.5 Fees Rule 1.6. Confidentiality of Information Rule 1.7 Conflict of Interest Rule 1.9 Duties to Former Clients Rule 1.16 Declining or Terminating Representation Rule 1.18 Duties to Prospective Client
Copyright © 2011 by TAG Academy, LLC; Robert U. Sattin. 2
The Initial Client Interview
Identifying The Issues Ethics Rules:
Determine who the client is. Determine the competencies needed. Avoid ethical traps e.g. when the representation
begins. Determine the scope of the matter.
The Initial Client Interview
Identifying the Issues Professional Concerns
Avoiding bad clients Avoiding bad cases Avoiding bad situations
The Initial Client Interview
Identifying the Issues Business Concerns
Avoiding clients who can’t or won’t pay Avoiding cases that overburden the office or
won’t be profitable
The Initial Client Interview
Addressing the Issues Ethical Issues Determine who the client is:
Corporation Officers Borrower or Guarantor Benefit Plan or Administrator
Remember Milton’s Rule: You don’t represent “the situation”!
The Initial Client Interview
Addressing the Issues Ethical Issues
“When acting as a fiduciary representative it is often unclear whom the lawyer represents—is the estate, which includes the beneficiaries, the client? Or is the executor of the estate the sole client?”
Your ABA, December, 2008, Ethical Issues in Fiduciary Representation, www.abanet.org/media/youraba/200812/article08.html
The Initial Client Interview
Addressing the Issues Conflict determination
Determining whether there are conflicts This requires an understanding of the nature of the problem
and the solution.
This must be done before too much information is disclosed so as to avoid an unintended conflict.
This cannot always be done in advance of the meeting because too much new information will be discovered in person.
If there are potential conflicts, are they waivable?
Copyright © 2011 by TAG Academy, LLC; Robert U. Sattin. 3
The Initial Client Interview
Addressing the Issues When does the attorney-client relationship begin?
Avoiding creation of an attorney-client relationship §14 Restatement (Third) of the Law Governing
Lawyers:
“A relationship of client and lawyer arises when: (1) A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”
The Initial Client Interview
Addressing the Issues Avoiding receipt of privileged information
Rule 1.18 of the Rules of Professional Conduct disqualifies
a lawyer who has received “disqualifying information”
from being adverse to the prospective client except under
narrow circumstances involving informed consent,
screening and proper notice.
The Initial Client Interview
Addressing the Issues Determining whether you are competent for
the job Does the firm have the necessary expertise?
Do you have the necessary expertise? If not, introduce
someone who does.
Can the firm allocate sufficient resources to the matter?
The Initial Client Interview
Addressing the Issues Professional Issues
Establish the goal of the client
Establish the scope of the engagement
Determine the time pressures
Establish the chain of command, e.g.
CEO, COO, GC, CFO, other
Establish the chain of communication
Establish the integrity of the client
Determine whether there is a way to exit the case.
The Initial Client Interview
Addressing the Issues Professional Issues
Beware of clients who have discharged or are unhappy with their current or prior attorney
Beware of beauty contests Beware of the client that seems too knowledgeable Beware of cases where you have no direct
relationship with either the decision-maker or the source of payment
Beware of unreasonable clients
The Initial Client Interview
Addressing the Issues Business Issues
Determine an estimated budget Determine the source of and risks to payment Determine the staffing needed Determine the risks and rewards.
Copyright © 2011 by TAG Academy, LLC; Robert U. Sattin. 4
The Initial Client Interview
Addressing the Issues Business Issues
Clients who can’t afford you
Cases that are of no interest
Cases that will overwhelm you or your office to the detriment of other matters
The Initial Client Interview
Addressing the Issues Problem Clients
Headline from the ABA Journal, September 9, 2009: “Nadel Receiver Sues Holland & Knight, Alleges Failure to Root Out Fraud”
The complaint, paragraph 31, claims that H&K “failed to conduct an adequate due diligence investigation into Nadel…”
Know your Client!
The Initial Client Interview
Practice Tips The Interview process
Control the process by establishing the goal: “If I am successful, where will you be?”
Control the process by establishing the ethical issues:
“Before we get started with your specific issues, let me explain some professional limitations relating to new matters”
The Initial Client Interview
Practice Tips The Interview process (continued)
Control the process by establishing the expectations:
“How will I know if I’m doing a good job for you?”
Control the process by establishing the chain of command:
“Who will be my primary contact and who else should be receiving my communications?”
The Initial Client Interview
Practice Tips The Interview
Involve more than one person if possible Establish rapport Return any documents Review the content of an engagement letter Determine the client, the decision maker and the party
paying. Establish the scope of the engagement.
The Initial Client Interview
Summary Think like a professional – Can I accept this matter
Do not create an attorney – client relationship too soon Prepare an engagement letter or letter declining the
matter
Copyright © 2011 by TAG Academy, LLC; Robert U. Sattin. 5
The Initial Client Interview
Summary Think like a partner – Do I want to accept this matter?
Is this a “lemon”? Is this a bad client? Can we staff the matter? Who will manage the project? Are the time demands unreasonable?
The Initial Client Interview
Summary Think like a businessman – should I accept this
matter? Will I get paid? Is it worth it to take this matter? Can I establish reasonable expectations for the client for cost
and outcome? What is the risk – reward ratio?
The Initial Client Interview
Questions?