Taking the Case

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 55-98

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. 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: Attorney’s professional conduct is governed by the New York Rules of Professional

Conduct, Rules 1.0 - 8.5, which are set forth in the New York State Codes, Part 1200, 22 NYCRR §1200.0.

Statements of clients’ rights are set forth at 22 NYCRR §§1210.1, 1400.1-1400.2.

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

Forms: See digital access for the following forms:

• Form 1:10, Fee Letter Agreement (Contingent Fee)

• Form 1:20, Fee Letter Agreement (Retainer Fee)

• Form 1:30, Statement of Client’s Rights and Responsibilities

• Form 1:40, Attorney Lien Letter

• Form 1:50, Substitution of Attorney

TABLE OF CONTENTS

I. Initial Client Contact

§1:01 Typical Pattern

§1:02 Attorney’s Purpose

§1:03 Client’s Purpose

§1:04 The First Telephone Call

§1:05 Avoid Giving Legal Advice

§1:06 Types of Prospective Clients

§1:07 Statement of Client’s Rights Must Be Posted in Office

§1:08 Evaluate the Client

New York Civil PraCtiCe Before trial 1-2

§1:09 Pay Attention

§1:10 Gather Facts

§1:11 What Facts to Gather

§1:12 Market Yourself

§1:13 Explain Confidentiality

§1:14 When Information May Be Revealed

§1:15 Request Candor

§1:16 Explain What You Intend to Do on Client’s Behalf

§1:17 Discuss Conflicts of Interest

§1:18 Describe Case Conference

§1:19 Describe Intended Research

§1:20 Describe Fact-Gathering Procedure

§1:21 Explain Consultation Fee

§1:22 Factors to Consider in Setting Consultation Fee

§1:23 Calendar Case Conference

§1:24 Give Client a List of Things to Bring

§1:25 Give Client a Time-Frame

§1:26 Discuss Applicable Statute of Limitations

§1:27 Final Caution to Prospective Client

§1:28 Offer Closing Advice

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 Payoff

§1:43 Boost or Bane to Reputation

§1:44 Development or Enhancement of Particular Expertise

§1:45 Intangible Benefits

§1:46 Complexity

§1:47 Drain on Time and Staff

§1:48 Out-of-Pocket Costs and Expenses

B. Evaluate Client

§1:60 Personality and Demeanor

§1:61 Prior Counsel and Past Litigation

§1:62 Ability to Pay

§1:63 Source of Referrals and Return Business

§1:64 Previous Representation

C. Consider Ethical Factors

1. PROFESSIONAL RULES GOVERN

§1:70 Review Rules of Professional Conduct

§1:71 Is the Claim or Defense Frivolous?

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

1-3 takiNg the Case

2. IS THERE A CONFLICT OF INTEREST?

§1:80 Basic Rule

§1:81 Risk of Disqualification

§1:82 Impermissible Representation of Adverse Interests

§1:83 Impermissible Business Transactions With Client

§1:84 Financial Assistance to Client

§1:85 Attorney as a Witness

§1:86 Conflict Involving Former Client

§1:87 Imputed Disqualification—Law Firm

§1:88 Imputed Disqualification—Former Government Lawyer or Judge

§1:89 Organization as Client

§1:90 Relationship with Lawyer Representing Adverse Party

§1:91 Run Conflicts Check

§1:92 Create a Conflicts Database

D. Evaluate Fee Sources

§1:100 Client as Sole Source

§1:101 Contractual Fee Recovery From Opposition

III. After Assessment and Valuation

A. Initial Steps

§1:110 If Case Rejected

§1:111 If Case Seems Acceptable

B. Prepare for Case Conference

§1:120 Goals and Issues of Conference

§1:121 Do Further Research

§1:122 Construct Preliminary Case Plan

C. Consider Fee and Cost Arrangements

1. PRELIMINARY CONSIDERATIONS

§1:130 Obtain Agreement Early

§1:131 Types of Arrangements

§1:132 Anticipate Client Input

§1:133 Local Custom and Practice

§1:134 Personal Rule or Law Firm Policy

2. FACTORS IN SELECTING A FEE ARRANGEMENT

§1:140 Whether Client Is Plaintiff or Defendant

§1:141 Type of Case

§1:142 Likelihood of Recovery

§1:143 Size of Potential Recovery

§1:144 Client’s Ability to Pay

§1:145 Availability of Attorney Fees Award in Judgment

§1:146 Case’s Burden on Time and Other Resources

§1:147 Ethical Considerations