Accepting or rejecting potential clients is a frequent occurrence for practicing attorneys. To protect yourself and your firm from high-risk or incompatible clients, you need sound client intake procedures.
The right client intake procedures are a smart risk control measure that may help you avert a legal malpractice claim before it can damage your business or your reputation.
Understanding Risk and Client Obligations
The decision to accept a representation has played a key role in several large legal malpractice claims. One commentator noted that by rejecting high-risk clients, a firm can reduce its risk of exposure by “40 to 50 percent.”1 Another observed that a culture and system evolves around client intake, either positively or negatively, and those that don’t develop the proper protocols increase their likelihood of eventually facing a claim.2
By choosing to accept a representation, an attorney takes on certain obligations and limits his or her ability to withdraw. Once an attorney agrees to represent a client, the attorney owes a fiduciary duty to the client and is obligated to represent the client in compliance with the applicable standard of care and may not withdraw from representation without cause.
Establishing a Client Intake Procedures System
Your firm can manage the risk of potentially dangerous representations by creating and implementing a thorough and objective client intake system. Several standard techniques can be employed:
Independent Intake Reviews
Firms with more than a small number of attorneys should implement an intake review system to assess all potential representations and ensure compatibility with the firm. Typically, this infrastructure involves an intake committee which makes decisions based upon objective factors that serve the best interest of the firm. In larger firms, it is important that the leadership of the law firm supports the committee and ensures it can operate independently and without undue influence.
Conflict of Interest Checks
Dangerous representations and potential claims can also be avoided with rigorous conflict of interest checks. Client conflict checks should occur at three junctures:
- At the initial consultation before confidential information is revealed
- Immediately prior to opening the new client or matter to ensure no new conflicts since the consultation
- Whenever a new party enters the case or matter
Clearing conflicts of interest is important to do in the case of potential clients. It is equally as important for lateral hires to the firm. All relevant data must be checked, including the potential lateral hire’s current cases and matters.
Supervision of Support Staff
In many mid-sized and large law firms, lawyers have support staff whose primary job duties entail managing the client intake process. Although partners may delegate client intake duties to support staff or subordinate lawyers, the partners are still responsible for the operations and management of client intake. One of the best ways to ensure procedures are followed is the consistent use of proper intake forms.
Management of Intake Forms
Intake forms are a front-line defense against potential high-risk representations. A thorough intake form can help a law firm identify potential conflicts of interest, assess ability to pay and ensure compatibility in terms of the firm’s areas of expertise, mission and values. The form should identify:
- Areas of practice, attorneys and practice groups
- Fee arrangement, retainer fee and a check for overdue fees if an existing client
- Referral source that brought the client to the firm
- Conflict of interest check, including potentially adverse parties and non-adverse third parties, any business conflicts, any ownership interests or board memberships
- Any waivers required and their documentation
- Background search for credit report, criminal record, past malpractice claims, past representations in the matter
- Documentation of the engagement letter approval and endorsement
While it is impossible to eliminate the risk of one day facing a malpractice claim, proper client intake procedures can dramatically reduce the risk to you and your firm. Because of the fiduciary and ethical duties of an attorney, it is best to identify and reject high-risk clients before representation begins. With a proper system of intake reviews, conflict of interest checks, staff supervision and intake form management, you can reduce your risk of facing a costly and damaging malpractice claim.
1. Elizabeth J. Cohen, “Number of Claims May Be Decreasing But Their Severity is Heading Upward,” 28 Law. Man. Prof. Conduct 161 (03/14/12) (quoting John K. Villa of Williams & Connolly)
2. Anthony V. Alfieri, “Big Law and Risk Management: Case Studies of Litigation, Deals, and Diversity.” 24 Geo. J. Legal Ethics 991, 998 (2011)