Taking the Case

• Author: Jennifer Duncan-Brice
• Pages: 13-66

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Taking The Case

Chapter 1

TAKING THE CASE

QUICK VIEW

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

through performing an initial factual investigation, undertaking legal research, and entering into a representation

agreement with the client.

Scope of Chapter: The initial client contact. Evaluating the case. Avoiding conflicts of interests and complying

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

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: DR 5-103; RPC 1.1-1.12, 3.1; 735 ILCS 5/2-1114; 770 ILCS 5/1 ff; 815 ILCS 640/1 ff.

Related Topics: Presuit Activities, Ch 2; Statutes of Limitation, Ch 3.

Forms: See digital access for the following forms:

• Form 1:10, New Client Information Sheet.

• Form 1:20, Fee Agreement (General Agreement-Contingent Fee or Hourly Rate).

• Form 1:30, Fee Agreement (Contingency Fee Referral).

• Form 1:40, Fee Letter Agreement (Medical Negligence Contingency Fee).

• Form 1:50, Family Law Engagement Agreement.

• Form 1:60, Family Law Statement of Client’s Rights and Responsibilities.

• Form 1:70, Motion to Withdraw.

• Form 1:80, Order of Withdrawal.

• Form 1:90, Attorney Lien Waiver.

• Form 1:100, Substitution of Counsel.

• Form 1:110, Entry of Appearance.

TABLE OF CONTENTS

I. Initial Client Contact

§1:01 Typical Pattern

§1:02 Attorney’s Purpose

§1:03 Client’s Purposes

§1:04 Handling the First Telephone Call

§1:05 Avoid Giving Legal Advice

ILLINO IS PRETR IAL PRAC TICE 1-2

Taking The Case

§1:06 Types of Prospective Clients

§1:07 Evaluate the Client

§1:08 Pay Attention

§1:09 Gather Facts

§1:10 What Facts to Gather

§1:11 Market Yourself

§1:12 Explain Confidentiality

§1:13 Request Candor

§1:14 Explain What You Intend to Do on Client’s Behalf

§1:14.1 Explain Client’s Responsibilities

§1:15 Discuss Conflicts of Interest

§1:16 Describe Case Conference

§1:17 Describe Intended Research

§1:18 Describe Fact-Gathering Procedure

§1:19 Explain Consultation Fee

§1:20 Calendar Case Conference

§1:21 Give Prospective Client a Time Frame for Decision on Acceptance

§1:22 Discuss Applicable Statute of Limitations

§1:23 Final Caution to Prospective Client

§1:24 Offer Closing Advice

II. Case Assessment and Valuation

A. Weigh Costs and Benefits

§1:30 Importance of Initial Case Assessment

§1:31 Chance of Prevailing

§1:32 Potential Pay-Off

§1:33 Boost or Bane to Reputation

§1:34 Intangible Benefits

§1:35 Complexity

§1:36 Drain on Time and Staff

§1:37 Out-of-Pocket Costs and Expenses

B. Evaluate Client

§1:50 Personality and Demeanor

§1:51 Prior Counsel and Past Litigation

§1:52 Ability to Pay

§1:53 Sources of Referrals and Return Business

§1:54 Previous Representation

C. Consider Ethical (RPC) Factors

§1:60 Review Rules of Professional Conduct

§1:61 Is Claim or Defense Frivolous?

§1:62 Are You Competent to Handle the Case?

§1:63 Is There a Conflict of Interest? General Rule: Adverse Interests

§1:64 Material Limitation Imposed by Other Responsibilities

§1:65 When Representation Permitted Despite Conflict

§1:66 Prohibited Transactions

§1:67 Financial Assistance to Client

§1:68 Former Client Restrictions

§1:69 Imputed Disqualification — General Rule

§1:70 Imputed Disqualification — Rule for Old Firm

§1:71 Imputed Disqualification — Rule for New Firm

§1:72 Imputed Disqualification — Former Government Lawyers

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Taking The Case

§1:73 Imputed Disqualification — Former Judge

§1:74 Organization as Client

§1:75 Run Conflicts Check

D. Evaluate Fee Sources

§1:80 Client as Sole Source

§1:81 Statutory Fee Recovery From Opposition

§1:82 Contractual Fee Recovery From Opposition

III. After Assessment and Valuation

A. Initial Steps

§1:90 If Case Rejected

§1:91 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

§1:110 Obtain Agreement Early

§1:111 Types of Arrangements

§1:112 Anticipate Client Input

§1:113 Custom in Profession

§1:114 Personal Guidelines or Law Firm Policy

2. FACTORS IN SELECTING FEE ARRANGEMENT

§1:120 Whether Client Is Plaintiff or Defendant

§1:121 Type of Case

§1:122 Likelihood of Recovery

§1:123 Size of Potential Recovery

§1:124 Client’s Ability to Pay

§1:125 Availability of Attorney Fees Award in Judgment

§1:126 Case’s Burden on Time and Other Resources

3. TIME-BASED (HOURLY-RATE) BILLING

§1:140 Practices and Procedures

§1:141 Advantages

§1:142 Disadvantages

4. CONTINGENCY FEES

§1:150 Practices and Procedures

§1:151 Advantages

§1:152 Disadvantages

5. RETAINERS

§1:160 Practices and Procedures

§1:161 Lump Sum Payments as Needed

§1:162 Regular Lump Sum Payments

§1:163 Types of Retainers

6. OTHER FEE ARRANGEMENTS

§1:170 Fixed Fees

§1:171 Fixed Fee Paid in Stages

§1:172 Maximum and Minimum Fee Limits

§1:173 Combination Contingency or Fixed Fees

§1:174 Combination Contingency or Hourly-Billed Fees

§1:175 Shared Fees