Chapter 28 - § 28.2 • INITIAL PREPARATION

• Jurisdiction: Colorado

§ 28.2 • INITIAL PREPARATION

§ 28.2.1—Plaintiff's Perspective

Conflicts

A current or former employee's first contact with an attorney or law office on an employment matter is most often by either a telephone call or an e-mail. Telephone calls may follow a short or detailed inquiry via e-mail through a variety of Internet listings and links. At first, this communication appears to be informal and preliminary, but ethical considerations immediately apply. It is important to have a conflict system, which will allow counsel to spot quickly a potential conflict of interest in the first conversation or communication with a potential client. Educating each person in the office who may have the first contact with a potential client regarding conflicts is imperative. Some firms on networking systems may require an immediate data entry into a computer system to check for conflicts on a continuing, instantaneous basis.

The attorney may recognize a conflict as early as learning the name of the potential client, the employer, the supervisor or manager, the type of matter, or the nature of the current or former employer. Even the identity of opposing counsel or the opposing firm can alert one to a potential conflict. Anyone in counsel's office talking to a potential client must take a moment after learning this initial information to consider the conflict issue, make a determination, and act accordingly.

Initial Contact and Fact Gathering

Non-attorneys who may speak to potential clients should not give legal advice. Additionally, attorneys should not give legal advice until after an agreed upon attorney-client relationship has been established. The intake process should concentrate on obtaining the facts of a situation, including dates, without giving out any legal advice or analysis. Most attorneys have a standardized inquiry or informational form that obtains the minimum but necessary facts to schedule an appointment and alert the staff to conflicts. A sample telephone intake form is included for reference as Exhibit 28A. Each attorney must determine whether more information is necessary for that attorney to decide if he or she is competent and ready, without a conflict, to meet face-to-face with a new client. The attorney can always request more information before the first meeting.

During the first communication with a potential client, the following information should be obtained:

1) Conflicts, names of supervisors and managers, names of primary witnesses;
2) Name, address, e-mail, and phone number (are the phone number and e-mail address secure for messages?);
3) Employer, address, nature of business, and number of employees;
4) Date of termination or adverse actions. Consider short statutes of limitations;
5) Length of employment, position, salary, and benefits at the time of adverse action(s);
6) Names of company employees who were most involved in the adverse action, including the client's most immediate supervisor;
7) Reasons the employee thinks the action was wrongful;
8) Gender, ethnicity, date of birth, and age;
9) Whether an outside charge or an internal complaint has been made;
10) Whether the caller has performance appraisals, letters regarding the termination, or other documentation of the matter;
11) The reasons given by the employer for the action;
12) Whether the employer has a handbook or employee manual;
13) The results that the employee seeks to obtain;
14) Whether the employee has talked to other attorneys;
15) Whether the employee has filed for unemployment benefits;
16) The employee's mitigation efforts; and
17) The employee's damages.

Beginning the Investigation of a Client's Matter

When possible, counsel should confirm the date and time of the initial appointment in writing. That writing can serve to list needed documentation from the client at the first meeting. The writing should reiterate the fee arrangement that will apply to the initial appointment. It is uncommon to send potential new clients a fee agreement prior to the first meeting. However, counsel should confirm a complete understanding as to the cost of the first meeting before it occurs. Each attorney should draft a letter according to the attorney's style and preference. A sample appointment confirmation letter used for remote, rather than in-person consultations, is included for reference as Exhibit 28B.

A basic list of items for the client to bring to the initial meeting includes:

1) A written chronology of events;
2) A recent resume;
3) A current job description;
4) The client's personnel file, including any performance appraisals, relevant memoranda, or correspondence (see the Practice Pointer below);
5) The employee handbook or policy manual;
6) Copies of internal written complaints;
7) Copies of employment agreements, engagement letters, severance agreements, or noncom-pete agreements;
8) Copies of any documents relating to the adverse action;
9) Arbitration agreements, if any;
10) Any document relating to employment that the employee has previously signed at the employer's request;
11) If terminated, copies of unemployment applications, decisions, or appeal documentation; and
12) Records of any bankruptcy the employee has previously filed.

Attorneys should encourage clients to provide documents electronically, either by private email or other non-paper means. This not only eliminates paper, it may save time during the discovery process for assembling and scanning documents. See, e.g., D.C.COLO.LCivR 53(c) (written discovery responses shall be exchanged electronically).

Practice Pointer
C.R.S. § 8-2-129 permits employees to inspect and obtain a copy of any part of their personnel file, specifically: "Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect and obtain a copy of any part of his or her own personnel file or files at the employer's office and at a time convenient to both the employer and employee." C.R.S. § 8-2-129(1). In addition, "A former employee may make one inspection of his or her personnel file after termination of employment." Id. This law is also discussed in § 27.2.6 of this Guide. Moreover, the Defend Trade Secrets Act, 18 U.S.C. § 1833(b), provides certain protections to individuals who disclose trade secret information to attorneys as part of a "lawsuit for retaliation by an employer for reporting a suspected violation of laws" or for the "purpose of reporting or investigating a suspected violation of law." Potential clients can be informed of these rights prior to coming in for a consultation. A Sample Personnel File Request is provided in Exhibit 28C.

During the initial meeting with a new client, the attorney determines the identity of persons who are obvious witnesses or key players in the events. In addition, the attorney should learn the witnesses' contact information, if available. Also, during the conversation, the attorney might learn of other important documents that should be requested.

By the end of the first meeting with a new client, the client should have an understanding of his or her legal rights, if any; how to preserve these rights; what is at stake; and how counsel will proceed with representing the client, if that arrangement is made.

An explanation of time limits to the client can be critical. Often, the client needs time to consider whether he or she will go forward, especially with a fee arrangement that may require an attorney fee or cost retainer. In such cases, the attorney and client should have an understanding as to the time-frame in which the client will decide whether to go forward with the relationship. In order to present this information and have a clear understanding between attorney and client, it is necessary for the lawyer to spend an adequate amount of time discussing each subject with the client.

Usually a lawyer needs at least one hour and sometimes as much as three hours to give a complete and competent description of rights and responsibilities to a new client, to review documents, and to answer client questions. A shorter time is likely to inhibit client understanding or questions. Attorneys should be very careful not to shortchange the initial meeting. Clients often believe the attorney already has made a decision about their matter at the end of their first meeting. Counsel must be very clear as to what counsel has determined about the case and what counsel still needs to investigate.

Finally, the initial meeting must be used to assess the client personally. This includes determining whether the client is likable, believable, able to articulate events or concerns, reasonably able to understand the complexity and seriousness of making claims, able to comprehend costs, able to realize the necessary investment of time and risks involved in litigation, and able to pursue the matter to its necessary end. Most clients will not know what the litigation process entails and will rely completely on the attorney for an explanation. Basically, at the initial interview, both client and attorney must determine whether there is a good match for an attorney-client relationship.

Practice Pointer
Any client considering making a claim, or any employer who is put on notice of a threat that a complaint may be brought against it, should be informed of the obligations to preserve relevant electronically stored information. This information may be associated with computer systems, laptops, cell phones, voice messaging, and text messaging systems. Penalties for spoliation of evidence can be severe. Attorneys should put the instructions to clients regarding this subject in writing. See F.R.C.P. 26 and § 29.6 of Chapter 29, "Discovery."

Investigation of Witnesses and Other Facts

A reasonable investigation must be extensive. It should include background checks to determine if a problem, such as the after-acquired-evidence doctrine, will come into play. It may include review of the client's resume, job description, college...