Dealing with Clients

• Author: Stewart I. Edelstein
• Profession: Commercial trial lawyer
• Pages: 1-28

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CHAPTER ONE

DEALING WITH

CLIENTS

This chapter discusses how to deal with clients, from t he first contact

from a prospective client th rough trial. For context, it start s with an

instr uctive ety mological explorat ion.

Unlike the ety mology of “lawyer,” which is straightforward and

uninteresti ng (from Middle English lawe, which derived from Old Norse

lag, meaning “that which is laid down”—the law), the etymology of

“attorney” is revelatory. In Old French, atorner meant “tur n to,” as in “to

assign, appoint.” The past participle of atorner was atorné (pronou nced

ah-torn-AY), which, used as a noun, meant “someone appointed to act

as someone else’s agent.” In the seventeenth and eighteenth centuries,

“attorney” was also a verb: “to attorney” meant to act as a prox y for

another. The older sense survives in t he “attorney-in-fact” in contrast

to the “attorney-at-law,” which is what a trial lawyer is.

What about “client”? Latin cluere mean s “to listen, follow, or obey.” The

present participle, cluens, developed the altern ate form cliens. Someone who is

cliens is always listening for a nother’s orders or advice rather than ta king inde-

pendent action. Clien s may be related to Latin clinare, wh ich means “to lean or

bend,” giving cliens the related sense of someone who leans on another—you.

Thus, etymological ly speaking, an attorney is someone the client

appoints to act in his or her stead on whom the client leans for sound

advice. As trial lawyers, we take on t remendous responsibility for our

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clients. While readi ng this chapter, keep in mind your role as attorney

and the reliance each of your clients places on you for your expertise,

professionalism, and (most of all) advice.

A. HOW TO HANDLE THE FIRST CONTACT FROM A

PROSPECTIVE CLIENT

Typically, the initial contact from a prospective client is by phone. When

you return that ca ll, you must find out the general nature of the matter so

you can tell whether you are competent to handle it, the urgency of t he

client’s needs, any facts related to applicable statutes of limitations, and t he

names of all potential par ties and others so you can check for conflicts of

interest. If you have handled similar matters, this is your opportun ity to

tell the prospective cl ient about your experience. On the other hand, if it

becomes obvious that you cannot handle the matter—because, for ex am-

ple, it is a patent case and you are not a patent lawyer—now is the time to

decline representation. Do not give legal advice dur ing this initial contact.

You should explain the ethical requirement that you do a conflicts

check, the procedure for it, and the date you can complete it and call

back. Explain t hat the prospective client must not disclose any confiden-

tial informat ion to you until you have finished that check.

Caveat: If your first contact f rom a prospective client is by e-mail,

beware and do not open an attachment to it. It may be a scam. Typically,

the e-mail is ostensibly from someone seeking help collecting money,

supposedly easily recovered if you just send a demand letter. Warning

signs are if the sender, often from a foreign countr y, is someone you do

not know and makes no reference to anyone you do know; the prospec-

tive client needs immediate action; a nd the e-mail has poor spel ling and

grammar a nd generic references such as “in your jurisdiction.”

Here is a typical exa mple, ostensibly from someone in Australia

whose e-mail address began w ith the word mutilate (no kidding):

Dear Counsel,

We request your service for business/commercial litigation. You were

referred to us from the referr al service. Kindly advice [sic] if you can

be of assistance to the pending issue.

Regards,

C. F.O.

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