State Bar Grievances and maybe even malpractice claims can be avoided with a good intake interview. Disagreements often arise between lawyer and client because the client has unrealistic expectations about what can be accomplished by the lawyer. A successful intake interview can be used to set realistic expectations. Here are some tips for a good intake interview.
If possible, have a staff person conduct a pre-intake interview
The only purpose of this interview is to gather enough information to do a thorough conflicts check. I recommend a staff member do this interview so that if a prospective client later alleges that the lawyer has a conflict of interest and cannot represent the opposing party, the lawyer can rightfully say that he or she has not obtained any confidential information from the prospective client and, in fact, has never talked to the prospective client. At this point, you only want the names of parties, important witnesses, and the general nature of the legal matter. If the prospective client attempts to give you “his side of the story” stop him. You do not want any information that could create a conflict of interest with a current client.
The lawyer should conduct the intake interview
If conflicts clear, then the lawyer needs to conduct an intake interview before the case is accepted. This is where the lawyer and the prospective client can take the measure of each other and decide if this is a relationship that will work.
Ask what the prospective client wants to achieve and inform them what they can expect to achieve
If what the prospective client wants to achieve is not a realistic goal, inform them what goals they can expect to accomplish. You may learn the person’s goals are not goals that you can achieve or perhaps not goals that fit with your view of what kind of lawyer you aspire to be. If it becomes clear to you that the prospective client’s goal is to make the opposing party’s life a living hell for as long as possible, perhaps this is not the client for you, and you are not the lawyer for this client.
Inform the prospective client of the timeline for obtaining their stated goals, the likely cost of pursuing those goals, and any alternatives there may be that might take less time and be less costly. This is where the lawyer should be a “counselor at law.” Sometimes what is at issue is simply not worth the cost of obtaining it. If you do not tell the person this upfront, you are not likely to have a satisfied client and are headed for a fee dispute. If the prospective client responds, “It’s not about the money, it’s the principle that matters,” send them away. At some point, it will become about the money. You are headed for a bad outcome.
Discuss conflicts up front
If there are multiple parties involved in the legal matter, make sure you know who your client is and make sure the parties understand that. For example, if several parties want you to form an LLC for them, make sure they understand that you will be representing the LLC and not any of them individually. Make sure they understand that they should not expect any confidentiality between you and the rest of them. Similarly, if two parties come to you for a pre-marital agreement, make sure you decide which of them you are going to represent and advise the other party, in writing, that you are not representing them, and they will need to get legal advice from their own lawyer. Failure to clear up any misunderstandings about who you represent and who you do not represent can result in your having to withdraw from the representation due to a conflict of interest or worse.
Discuss fees up front
If you decide to take the case, your written engagement agreement is where you will want to discuss fees in some detail, but you should also discuss fees during the intake interview. Does the prospective client have the money to pay your fee? If not, is there a workable payment plan? There is nothing wrong with a prospective client trying to negotiate the fee, but if he wants to argue with you about your fee, you are headed for trouble. If you quote him a likely fee, do not “low ball” it. He will only remember the lowest fee you quote.
Reasonable expectations go both ways
Consider your own expectations concerning the representation. There is nothing wrong with a lawyer taking on a case in a new area of law or a case that promises to be document intensive. But you need to consider whether you are competent to handle the matter or have the time to become competent to handle the matter. Do you have the staff resources to manage the case? Do you have the necessary technology to manage the case? You do not want to take a case that you are not going to be able to manage.
Listen to your gut
The intake interview is the best opportunity you have to spot what we at Lawyers Mutual call the “red flags” that prospective clients raise when talking to you about their legal matter. Sometimes, the red flags will be significant enough for you to decide not to take the case. Other times, the red flags will simply alert you to the need to manage the red flags. Insureds call me all the time to report a claim or a grievance and the first thing out of their mouth is, “I knew this was going to happen.”
A solid intake interview will go a long way to making sure the cases you choose to work on are fulfilling for you and your clients.
About the Author
Mark Scruggs is senior claims counsel with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or email@example.com.