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  • 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, its not as if they walk in the door wearing a shirt that proclaims Im 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 qualityissues that cut across all practice areas and geographic locationsremain 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 cant or wont pay Avoiding cases that overburden the office or

    wont 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 Miltons Rule: You dont 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 representsis 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 persons 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 cant 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 Im 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?

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