Dealing with clients

• Author: Stewart Edelstein
• Pages: 1-28

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CHAPTER ONE

DEALING WITH

CLIENTS

This chapter discusses how to deal w ith clients, from the fi rst contact

from a prospective client through trial. For context, we will start with

an instructive etymological exploration.

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 ety mology of

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

assign, appoint.” The past participle of atorner was ator né (pronounced

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

as someone else’s agent.” In the 17th and 18th centuries, “attorney” was

also a verb, “to attorney,” meaning to act as a proxy for another. The

older sense survives in t he “attorney-in-fact,” in contrast to the “attor-

ney-at-law,” which is what trial lawyers are.

What about “client”? Latin cluere means “to listen, follow, or obey.”

The present participle, cluens, developed an alternate form cliens. Some-

one who is cliens is always listeni ng for another’s orders or advice, rather

than taking independent action. Cliens may be related to Latin clin are,

which means “to lean or bend,” giving cliens t he 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

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advice. As tria l lawyers, we take on tremendous responsibility for our

clients. While reading 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, adv ice.

1. HOW TO HANDLE THE FIRST CO NTACT FROM A PROSPECTIVE

CLIENT

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

you return t hat call, you must find out the general natu re of the case so you

can tell whether you are competent to handle it, the u rgency of the client’s

needs, any facts related to applicable statutes of limitat ions, and the names

of all potential part ies so you can check for conflicts of interest. If you have

handled similar ca ses, this is your opportun ity to tell the prospective client

about your experience. On the other hand, if it becomes obvious that you

cannot handle the case—because, for example, it is a patent case and you

are not a patent lawyer—now is the time to decli ne representation. Do not

give legal advice duri ng this initial contact.

You should explain the ethical requirement that you do a conflict s

check, the procedure for it, and how soon you can complete it and call

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

tial information to you until you have done that check.

Caveat: If your first contact from a prospective client is by email,

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

the email is ostensibly from someone seek ing help collecting money, sup-

posedly easily recovered if you could just send a demand letter. Warning

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

not know, and making no reference to anyone you do know; the pros pec-

tive client needs immediate action; and t he email may have poor spelling

and grammar and generic references, such as “in your jur isdiction.”

Here is a typical example, ostensibly from someone in Australia

whose email 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 referral service. K indly advice [sic] if you can

be of assistance to the pendi ng issue.

Regards,

C.F.O.

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