Lawyers USA Your Business Partner

Not long ago, I dropped a traveling coffee mug in my car as I was backing out of my garage. Reaching over quickly to limit the spillage, I backed into the garage door and broke the side-view mirror. Off. It was the most expensive cup of coffee I ever had.

In a similar vein, when a new client appears in a law office, it’s critical to start the representation on the road to success without spillage or breakage.

“Waiting room pitfalls” are especially tricky to navigate if the law office in question is a small or solo practice.

Client selection

An experienced disciplinary prosecutor once told me that small firms often become overextended when they refuse to turn down a matter because of the fear that this very client is the last client who will ever walk into the office waiting room.

Too many losing or cost ineffective cases crowd out the time needed for the best cases. In turn, this can lead to taking short cuts, and before long the side-view mirrors are breaking off (or whatever the equivalent is in ethical terms).

There are, of course, other good reasons for the typical lawyer’s reluctance to turn down a case.

We are members of one of the great helping professions, and most clients have a sad but coherent story to tell. Often, the client has been rejected by one or more other lawyers, and as the proverbial “last lawyer in town,” we hesitate to turn our backs as well.

How much guilt will we feel, six months later, if we read about the loss of the client’s business, or a modified child custody order demonstrating that the client’s fears were justified?

But warning signals must be heeded nonetheless. Why, exactly, did other lawyers turn this client down? Is the matter so complex, with so many side issues, that peeling away all of the skins of the onion will prove to be too time–consuming, even if the basic case is sound?

What is the client’s ability to pay for at least a healthy portion of the potential expenses? And if the client is complaining about a previous lawyer’s malpractice, was there a second lawyer who is also a target? (If so, you may already be auditioning for the role of target number three!)

Some of my colleagues in the Association of Professional Responsibility Lawyers (APRL) summed it up nicely in a recent listserv discussion: “Say no, feel bad for ten minutes; say yes, feel bad for two years – if you’re lucky!”

Confidentiality

All lawyers are aware that maintaining client confidences is a core requirement of professional conduct, but maintaining a “leak-free” office is not as simple as it might seem.

Can one client overhear a receptionist answering another client’s call, for example? Are all conversations of substance held behind firmly closed doors?

Perhaps the most difficult habit to cultivate is handling inquiries from adversaries or third parties (or even the press) with a routine refusal to comment, even when the inquiry seems innocuous, or a truthful answer will not harm the client.

Conflict of interest

The ethical injunction to avoid conflicts of interest covers a much wider variety of situations than the headline-grabbing lateral hire of a lawyer who “switches sides” from one huge law firm to another.

Indeed, in smaller firms, conflicts of interest most often appear in more prosaic garb: two friends and business partners in a small town want to start a new venture; a rich old client wishes to disinherit an adult child who is separately represented by the firm; another client, who has been friends with his lawyer since childhood, wishes to provide for him in his estate plan.

Lawyers responding to these and other conflict situations face two key tasks.

First, the lawyer must evaluate why the situation is considered problematic in the law of lawyering – what is it that might go wrong and result in less than optimal representation for one or more of the clients?

Will the coffee spill? Will the mirrors break off? Will the lawyer not be able to give fully responsive advice to one client because that would require breaching confidentiality of another?

The far more difficult task is to explain the problem to the affected client or clients with sufficient clarity so that any consent to continued representation will be truly informed consent, as the rules of professional conduct require.

The explanation must not only be pitched to the sophistication level of the affected clients, but also must be clear-eyed and free of euphemism. It will not do to refer blandly to some unexplained “conflict situation.” Rather, the lawyer must give a realistic picture of what could go wrong, and the means – such as constant communication – for avoiding the problem as the representation proceeds.

Fees and expenses

The rules of professional conduct typically require only contingent fee contracts to be in writing, but it is inviting all manner of spillage and breakage not to do the same for all fee contracts. After procrastination and failure to communicate (also known as refusing to return phone calls), clients become more upset about billing “surprises” than anything else.

Open discussion of fees and the expenses of litigation – and the difference between the two – plays an additional positive role at the very outset of the attorney-client relationship.

First, it can be an important element in the client selection process discussed earlier. Hourly fee clients, for example, need to have a rough idea of what the representation will cost and what retainer the lawyer will require in advance, in order to determine if their potential gain is worth the cost (and if they can afford it).

Contingent fee clients have to be reminded that although they will owe no attorney fees, they will be responsible for the reasonable expenses of the case, even if the lawyer agrees to advance some or all of these costs.

Many experienced lawyers will not take on a contingent fee matter unless the client deposits at least a few hundred dollars for expenses – that gives the client a stake in the matter and acts as a kind of informal “lie detector” to make sure that the client is willing to back up his claims.

William Hodes is a solo practitioner who specializes in legal ethics and the law of lawyering. Based in Indianapolis, Ind., he is Professor Emeritus of Law at Indiana University, where he taught for 20 years. Hodes’s website is www.hodeslaw.com.

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