the initial client interview introduction - · pdf filethe initial client interview...

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.


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.


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)


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.


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



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.


Identifying the Issues  Professional Concerns

  Avoiding bad clients   Avoiding bad cases   Avoiding bad situations


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


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”!


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


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?



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.”


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.


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?


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.


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


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.



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


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!


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”


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?”


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.


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



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?


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?


Questions?

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