Taking the Case

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 53-98

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Chapter 1

TAKING THE CASE

QUICK VIEW

Definition: Taking the case is the initial process of considering representation of a client, from the first contact

through performing a preliminary factual investigation, reviewing and clearing conflicts of interest, undertaking

legal research, and entering into a representation agreement with the client.

Scope of chapter: The initial client contact. Evaluating the case. Identifying and avoiding conflicts of interests

and complying with other rules of professional conduct. Fee arrangements. Drafting the engagement contract.

Practice forms.

Strategies and tactics: Review the case carefully at the outset to be sure that you want to accept it. Make

sure that the client has a clear understanding of the nature of the representation, the fee arrangements, etc. to

avoid later misunderstandings and problems. Document the terms of your agreement with the client clearly and

completely.

Statutes and rules: Attorneys’ professional conduct is governed by the Texas Disciplinary Rules of Professional

Conduct (State Bar Rules) Rules 1.01-9.01.

Related topics: Presuit activities, Ch 2; Discovery, Ch 24.

TABLE OF CONTENTS

I. Initial Client Contact

§1:01 Typical Pattern

§1:02 Discuss Conflicts of Interest

§1:03 Handling the First Telephone Call

§1:04 Attorney’s Purpose

§1:05 Client’s Purpose

§1:06 Avoid Giving Legal Advice

§1:07 Beware of Creating Fiduciary Obligation

§1:08 Types of Prospective Clients

§1:09 Evaluate the Client

§1:10 Pay Attention

§1:11 Gather Facts

§1:12 What Facts to Gather

§1:13 Market Yourself

§1:14 Explain Confidentiality

§1:15 When Information May Be Revealed

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE 1-2

§1:16 When Information Must Be Revealed

§1:17 Request Candor

§1:18 Explain What You Intend to Do on Client’s Behalf

§1:19 Describe Case Conference

§1:20 Describe Intended Research

§1:21 Describe Fact-Gathering Procedure

§1:22 Explain Consultation Fee

§1:23 Factors to Consider in Setting Consultation Fee

§1:24 Calendar Case Conference

§1:25 Give Client List of Things to Bring

§1:26 Give Client a Time Frame

§1:27 Discuss Applicable Statute of Limitations

§1:28 Final Caution to Prospective Client

§1:29 Offer Closing Advice

II. Case Assessment and Valuation

A. Weigh Costs and Benefits

§1:34 Importance of Initial Case Assessment

§1:35 Chance of Prevailing

§1:36 Potential Pay-Off

§1:37 Boost or Bane to Reputation

§1:38 Intangible Benefits

§1:39 Complexity

§1:40 Drain on Time and Staff

§1:41 Out-of-Pocket Costs and Expenses

B. Evaluate Client

§1:46 Personality and Demeanor

§1:47 Prior Counsel and Past Litigation

§1:48 Previous Consultations

§1:49 Ability to Pay

§1:50 Source of Referrals and Return Business

C. Consider Ethical Factors (State Bar Rules)

1. STATE BAR RULES GOVERN

§1:56 Review State Bar Rules

§1:57 Is Claim or Defense Frivolous?

§1:58 Are You Competent to Handle the Case?

§1:59 Competence Defined

2. IS THERE A CONFLICT OF INTEREST?

§1:64 General Rule: Adverse Interests

§1:65 Questions to Consider

§1:66 Independent Judgment May Not Be Impaired

§1:67 When Representation Is Permitted Despite Conflict

§1:67.1 Concurrent Client Conflicts in Federal Court

§1:68 Lawyer’s Motives May Be a Factor

§1:69 Impermissible Business Transactions With Client

1-3 TAKING THE CASE

§1:70 Financial Assistance to Client

§1:71 Former Client Restrictions

§1:71.1 What Is a “Substantially Related Matter”?

§1:72 Imputed Disqualification — Members of Firm

§1:72.1 Typical Migrating Lateral Lawyer Situations

§1:73 Imputed Disqualification — Successive Government and Private Employment

§1:74 Imputed Disqualification — Former Judges and Law Clerks

§1:75 Organization as Client

§1:76 Questions to Consider

§1:77 Run Conflicts Check

§1:78 Create a Conflicts Database

3. CORPORATE AFFILIATE CONFLICTS

§1:79 The “All Affiliates” Position

§1:80 Erosion of “All Affiliates” Rule

§1:81 Texas Authorities on Corporate Affiliate Conflicts

D. Evaluate Fee Sources

§1:84 Client as Sole Source

§1:85 Statutory Fee Recovery From Opposition

§1:86 Contractual Fee Recovery From Opposition

III. After Assessment and Valuation

A. Initial Steps

§1:92 If Case Rejected

§1:93 Client Rejection Letter

§1:94 If Case Seems Acceptable

B. Prepare for Case Conference

§1:100 Goals and Issues of Conference

§1:101 Do Further Research

§1:102 Construct Preliminary Case Plan

C. Consider Fee and Cost Arrangements

1. PRELIMINARY CONSIDERATIONS

§1:108 Obtain Agreement Early

§1:109 Types of Arrangements

§1:110 Anticipate Client Input

§1:111 Custom in Profession

§1:112 Personal Rule or Law Firm Policy

2. FACTORS IN SELECTING FEE ARRANGEMENT

§1:118 Whether Client Is Plaintiff or Defendant

§1:119 Type of Case

§1:120 Likelihood of Recovery

§1:121 Size of Potential Recovery

§1:122 Client’s Ability to Pay

§1:123 Availability of Attorney Fee Award in Judgment

(Rev. 10, 4/13)

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