Taking the Case

• Author: Robert F. Kane/Donald G. Rez
• Pages: 41-156

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 RPC 1.100-5-310 and Bus & Prof C §§6000 ff.

Related Topics: Presuit Activities, Ch 2; Statute of Limitations, Ch 3.

Forms in Digital Access: See digital access for the following forms:

• Form 1:10 New Client Information Sheet.

• Form 1:20 Litigation Fee Agreement [Hourly or Contingency Fee].

• Form 1:30 Fee Agreement [Flat Fee].

• Form 1:40 Notice of Motion to Appear as Counsel Pro Hac Vice and Supporting Points and Authorities

and Declarations

California Pretrial Practice & Forms 1-2

TABLE OF CONTENTS

I. INITIAL CLIENT CONTACT

§1:01 Typical Pattern

§1:02 Discuss Conflicts of Interest

§1:03 Confidentiality of Discussions With Prospective Client

§1:04 Handling the First Telephone Call

§1:05 Attorney’s Purpose

§1:06 Client’s Purpose

§1:07 Avoid Giving Legal Advice

§1:08 Beware of Creating Fiduciary Obligation

§1:09 Types of Prospective Clients

§1:10 Evaluate the Client

§1:11 Pay Attention

§1:12 Gather Facts

§1:13 What Facts to Gather

§1:14 Market Yourself

§1:15 Explain Confidentiality

§1:16 When Information May Be Revealed

§1:17 When Information Must Be Revealed

§1:18 Request Candor

§1:19 Explain What You Intend to Do on Client’s Behalf

§1:20 Describe Case Conference

§1:21 Describe Intended Research

§1:22 Describe Fact-Gathering Procedure

§1:23 Explain Consultation Fee

§1:24 Factors to Consider in Setting Consultation Fee

§1:25 Calendar Case Conference

§1:26 Give Client List of Things to Bring

§1:27 Give Client a Time-Frame

§1:28 Discuss Applicable Statute of Limitations

§1:29 Final Caution to Prospective Client

§1:30 Offer Closing Advice

§1:31 Solicitations of Clients

§1:32 Limited Scope Representation

II. CASE ASSESSMENT AND VALUATION

A. WEIGH COSTS AND BENEFITS

§1:40 Importance of Initial Case Assessment

§1:41 Chance of Prevailing

§1:42 Potential Pay-Off

§1:43 Boost or Bane to Reputation

§1:44 Intangible Benefits

§1:45 Complexity

§1:46 Drain on Time and Staff

§1:47 Out-of-Pocket Costs and Expenses

§1:48 Insurance Coverage

§1:49 Indemnity

§1:50 Contractual Limitations on Forum

§1:51 Contractual Limitations on Choice of Law

§1:52 Contractual Limitation on Recoverable Damages

B. EVALUATE CLIENT

§1:60 Personality and Demeanor

1-3 Taking the Case

§1:61 Prior Counsel and Past Litigation

§1:62 Previous Consultations

§1:63 Ability to Pay

§1:64 Source of Referrals and Return Business

§1:65 Consider Other Avenues of Compensation

C. CONSIDER ETHICAL FACTORS (STATE BAR RULES)

1. Governing Rules

§1:70 Review Rules

§1:71 Is Claim or Defense Frivolous?

§1:72 Are You Competent to Handle the Case?

§1:73 Competence Defined

2. Is There a Conflict of Interest?

§1:80 General Rule: Adverse Interests

§1:81 Questions to Consider

§1:82 Disqualification

§1:83 Run Conflicts Check

§1:84 Create a Conflicts Database

§1:85 Written Disclosure of Adverse Interests

§1:85.1 Obtain Written Consent

§1:86 Representation Adverse to Current or Former Clients

§1:87 Duty of Loyalty to a Client May Not Be Impaired

§1:88 Concurrent Representation of Clients in Same Matter

§1:89 Concurrent Representation in Unrelated Matters

§1:90 Former Clients and Successive Representation

§1:91 Imputed Disqualification — Members of Firm

§1:92 Imputed Disqualification — Successive Government and Private Employment

§1:93 Imputed Disqualification — Former Judges and Law Clerks

§1:94 Non-Lawyer Employees of Firm

§1:95 Expert Witnesses

§1:95.1 Disqualification Due to Obtaining Confidential Information

§1:96 Organization as Client

§1:97 Conflicts When Parent of Subsidiary Is Client

§1:98 Questions to Consider

§1:99 Representations Permitted Despite Client Conflict With Informed

Written Consent

§1:100 Lawyer’s Personal Interest or Relationship

§1:101 Sexual Relations

§1:102 Impermissible Business Transactions With Client

§1:103 Financial Assistance to Client

§1:104 Attorney As Witness

§1:105 Preparation of Documents and Subsequent Representation

§1:106 Effect of Breaching Conflict Rules

§1:107 Public Entity Employment of Private Counsel

§1:108 Fiduciary Duty of Loyalty and Confidentiality

D. EVALUATE FEE SOURCES

§1:110 Client Generally Sole Source

§1:111 Statutory Fee Recovery From Opposition

§1:112 Prevailing Party

§1:113 Court’s Discretion

§1:114 Tort of Another

§1:115 Contractual Fee Recovery From Opposition

§1:116 Recovery of Fees Under Court’s Equitable Power

§1:116.1 Statutory Private Attorney General