Initial Interview with a Potential Client

The purpose of the client interview is to obtain as much information in respect to the situation presented by the client. A second purpose is to sell the attorney’s services. In order to convince the client to retain the attorney, it is necessary to gather as much information as possible about the issue presented by the potential client and the confidently explain what can reasonably be done.
 
GATHERING INFORMATION
 
Some information, such as name, address, telephone numbers, and email address, are common to all clients. Other information is matter specific. While many firms have adopted various fill-in-the-blank forms, others use available online forms, such as Lexis provided HotDocs, which allow an attorney to enter information once for use in standard forms.
 
Standard Information
 
Information to be gathered on every client and potential client includes everything needed to contact the client. The interviewing attorney should obtain not only the name and address of the client, but also place of employment, home, office, and cell phone numbers, e-mail address, and fax access.
 
If the client is seeking representation on behalf of a corporation, the attorney will also need information on the full corporate name, where it is chartered, the names of the corporate officers, the name and address of the resident agent, if any, the corporate address, e-mail address, and all contact names and phone numbers.
 
At this point it is important that the attorney clarify exactly who is the client. When someone from a corporation seeks an attorney’s assistance, the attorney needs to determine whether he will represent the person talking to the attorney or the corporation itself. When a trustee approaches an attorney, it is important to know whether the attorney will be representing the trustee, the trust, or the beneficiary. There are other circumstances in which the client is not the payor.
 
The Comment to RULE 1.8 ABA MODEL RULES OF PROFESSIONAL CONDUCT (2002) states:
 
Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client.
 
ABA Model Rules of Professional Conduct Rule 1.8 cmt. 11 (2002).
 
Once the attorney determines who is the client, it is time to get specific information related to the issue at hand.
 
PARTICULAR PRACTICE AREAS
 
Insurance
 
Insurance practice covers a wide variety of matters. While the mainstay of an insurance practice concerns claims against insurance company, law firms are also involved in compliance issues. Each state has adopted statutes and rules regulating sale of policies, policy forms, payment of claims, cash reserves, accounting, and investments.
 
Claims against insurers:
  •             Name of insured
  •             Address of insured
  •             Name of policy holder, if different
  •             Address of policy holder
  •             Name of Insurance Company
  •             Address of Insurance Company
  •             Type of Policy
  •             Policy Number
  •             Effective date of policy
  •             Type of claim
  •             Date insurer was notified
  •             Narrative details of the claim
 
Where personal injuries or illness is involved, also ask:
  •             Date of birth of insured
  •             Social Security number of insured
  •             Employer
  •             Income
 
If ERISA claim:
  •             Name of plan
  •             Plan administrator
  •             Address of claim administrator
  •             Name of employer
  •             Address of employer
 
Claims against an insured:
  •             Name of claimant
  •             Address of claimant
  •             Social security number of claimant, if known
  •             Name of insured
  •             Address of insured
  •             Name of Insurance Company
  •             Address of Insurance Company
  •             Type of Policy
  •             Policy Number
  •             Effective date of policy
  •             Type of claim
  •             Date insurer was notified
  •             Narrative details of the claim
 
Compliance issues:
  •             Name of the insurance company
  •             Address of the insurance company
  •             Responsible employee
  •             Phone number of responsible employee
  •             Narrative details of the issue
 
In addition to gathering information, it is also important to gather all correspondence concerning the issue.
 
Securities
 
Securities litigation most often revolves around the buying and selling of stocks and bonds, in manners violating federal and state securities laws. The most frequently cited violation is § 10(b) of the Securities Exchange Act of 1934, 15 USCS § 78j(b), and Rule 10(b)-5 promulgated thereunder, 17 CFR 240.10b-5, and Rule 10(b)-5 promulgated thereunder, .  Other provisions, including those found in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USCS § 1961 et seq., also provide sources of securities litigation, both civil and criminal. Criminal actions are usually brought by the United States. Civil actions are brought by individuals or classes of individuals. It should be remembered that pleadings alleging fraud must be stated with all of the alleged details constituting the fraud. RICO claims must include predicate acts. Derivative actions contend that directors and officers acted in ways that hurt the corporation. et seq., also provide sources of securities litigation, both civil and criminal. Criminal actions are usually brought by the United States. Civil actions are brought by individuals or classes of individuals. It should be remembered that pleadings alleging fraud must be stated with all of the alleged details constituting the fraud. RICO claims must include predicate acts. Derivative actions contend that directors and officers acted in ways that hurt the corporation.
  
Civil claims
  •             Name of purchaser of stocks
  •             Date stocks were purchased
  •             Price paid for such stocks
  •             If sold, date of sale of stocks
  •             If sold, amount received at sale
  •             Current value of stock
  •             Names of officers and directors involved in the alleged wrongful acts
  •             Sufficient narrative details to be able to determine whether wrongful acts took place
  •             Narrative details of defenses to the alleged wrongful acts
Criminal claims
  •             Position of client in the corporation
  •             Duties of client
  •             Details of the allegation
  •             Stated defenses
  •             Actions of others within the corporation
 
Commercial Law
 
Commercial law frequently involves the purchase or lease of goods. Most business transactions are governed by the Uniform Commercial Code (UCC). Issues arise over whether the goods that were purchased were delivered on time, whether delivery was excused, whether they performed as warranted, whether they were paid for.  Lease contracts covered under the UCC are for lease of goods, such as cars, office equipment, construction equipment, or tents and party goods. The UCC does not apply to leases of real property. Other actions under the UCC involve collections on negotiable instruments, funds transfers, letters of credit, bulk transfers, title documents involving bills of lading and warehouse receipts, transfer of investment securities, and secured transactions.
 
There are certain basic principles that apply to all of the UCC’s provision, including the necessity for fair dealing and good faith, as well as reasonable standards of conduct. There are also the provisions that permit parties to a contract to choose which court would have jurisdiction if there is a dispute and what law will apply.
 
For the counseling obligations of the draftsman of a contract, see 5-1 Forms & Procedures Under the UCC P 11.01.

For a typical Sales Contract, see 5-1 Forms & Procedures Under the UCC P 21.00.

UCC – Article 2 Sales
            Name of purchaser
            Address of purchaser
            Name of seller
            Address of seller
            Type and amount of goods sold
            Price
            Expected delivery date
            Payment due date
            Actual date of delivery
            Any express warranties
            Details of the alleged breach
 
For Information on Leases under the USS, see 6-4A Current Legal Forms for Commercial § 4A.37.

UCC – Article 2A Leases
            Name of lessor
            Address of lessor
            Name of lessee
            Address of lessee
            Type and amount of goods sold
            Expected delivery date
            Actual date of delivery
            Any express warranties
            Length of the lease
            Begin date of lease
            Payments
            Repair responsibilities
            Details of the alleged breach
 
For information on negotiable instruments, see 5A-1 Forms & Procedures Under the UCC P 31.00

UCC – Article 3 Negotiable Instruments
            Name of payor
            Address of payor
            Name of payee
            Address of payee
            Name of holder
            Address of holder
            Why the note was given
            Circumstances of any negotiation
            Amount of note
            Amount of interest on note
            Due date of note
            Amount of any payments made
            Amount still owed
            Any alleged defenses to payment
 
For information on bulk sales, see 7-5 Current Legal Forms for Commercial § 5.24
 
UCC – Article 6 Bulk Sales
            Name of seller
            Address of seller
            Name of buyer
            Address of buyer
            Goods sold
            Date of sale
            Date of transfer
            Terms of sale
            Proposed notification
            Persons to be notified
 
For a summary of the scope of Article 9, Secured Transactions, see 5C-1 Forms & Procedures under the UCC P R91.02.

UCC – Secured Transactions
            Name of creditor
            Address of creditor
            Name of Debtor
            Address of debtor
            Amount of debt
            Basis for the debt
            Collateral
            Any assignments of debt
            Any assignments of collateral
 
Intellectual Property
 
Intellectual property law covers the fields of patent, trademark, trade dress, and copyrights. These are specialized fields requiring specialized training. The attorney needs to have knowledge of the product presented by the client and a full understanding of the administrative process involved in protecting the product. Practice areas involve registering the product, licensing it, selling the rights to it, and litigating infringements.
 
Infringement litigation           
  •             Name of owner of property at issue (patent, trademark, copyright)
  •             Address of owner
  •             Registration number of property
  •             Date of registration
  •             Name of alleged infringer
  •             Address of infringer
  •             Details of infringement action
  •             Defenses to action
 
General Corporation Law     
 
Corporations cannot represent themselves and need attorneys from a period of time before they are incorporated through a period of time after they are dissolved. Attorneys are necessary to draft subscription agreements, articles of incorporation, and bylaws.  They help the corporation comply with state and federal laws, proceed through administrative regulations, and contract with other companies and individuals, in the United States and abroad. The kind of information to be gathered by an attorney during an initial interview is dependent on the reason the corporation sought attorney help
 
Environmental
 
Environmental law covers not just dealings with the Environmental Protection Agency, but also toxic torts, such as asbestos claims and lead paint poisoning, and Superfund clean up. The bulk of an environmental practice involves either administrative compliance issues or toxic tort litigation. The information to be gathered during the initial client interview is wholly dependent on the business of the client.
 
Toxic Torts
 
See The Decision Whether to Accept a Toxic Tort Case, 1-1 Toxic Torts Guide § 1.03

  •             Name of injured party
  •             Address of injured party
  •             Type of exposure
  •             Cause of exposure
  •             Owner of property causing exposure
  •             Address of property causing exposure
  •             Damages as a result of exposure
  •             Medical expenses
  •             Lost wages
  •             Medical treatment
  •             Medical providers
  •             Information on notice to owner
 
Tax
 
Tax disputes most often involve income taxes. Questions arise as to how much income a taxpayer has, the classification of income, and the legitimacy and amount of deductions, but disputes are not limited to income taxes. Transfer taxes, sales taxes, and even user fees all present their own cornucopia of problems and disputes. A manufacturer who sells directly to the public will have to determine whether the product is taxable in each state in which it does business.
 
  •             Name of taxpayer
  •             Address of taxpayer    
  •             Years in contention
  •             Amount alleged to be due
  •             Details of allegation
  •             Defenses
 
Real Estate
 
A real estate practice covers not only the buying, selling, and leasing of real property, but also zoning disputes, boundary disputes, financing, foreclosures, assessments, and tax sales. The exact information the attorney needs to obtain varies with the particular matter. In all cases, the attorney will need to know the following:
 
  •             Address of the property at issue
  •             Owner of the property at issue
  •             Purpose for which the property is used
  •             Details of the issue
 
THE VALUE OF THE CASE
 
Every case has a value. It is up to the attorney to evaluate what that value is and convey it to the client. At the same time, the attorney must also be realistic as to the cost to obtain that value so that a potential client can make a cost-benefit analysis in deciding what course to follow.
 
In a criminal matter, the attorney must realistically review the evidence, determine whether the client could be found innocent, and if not, what the likely sentence would be. Only with this information can an attorney enter into a fair plea bargain on behalf of the client. In the same manner, in a personal injury case, the attorney needs to consider what an injured client can reasonably hope to get through a settlement or from a jury. What are the costs to go through a trial? What would a delay in resolving the issue mean to the client? A similar type of analysis is necessary with each client.
 
In valuating a case, an attorney has a wide variety of sources. One of the most important is the attorney’s own experience and that of his co-workers. In litigation, knowledge of the judges and the community where the case will be tried is essential. Some communities are much more generous in awarding damages or in punishing tortfeasors than others. In federal courts, judges are usually randomly assigned. Once a case is assigned to a judge, that judge follows the case from the time of filing to post-trial motions. In state courts, particularly those courts with a lot of judges, it is rare that one judge will follow the case from beginning to end. Unless a case is particularly complex, the attorney will appear before a different judge for motions, discovery disputes, settlement conferences, and trials.
 
Other sources available to an attorney are online databases and periodicals giving the latest verdicts in a wide variety of cases.  Many of these sources also provide vital information on the contested issues, expert witnesses, and circumstances peculiar to the case.
 
In addition to the facts of the matter at hand and the results in typical cases, the attorney must also objectively consider the client. Is the client a person who will be sympathetic to the jury or one whom the jury will dislike? Is the corporation one with a solid reputation or one that has recently received a lot of very adverse publicity?
 
SELLING SERVICES
 
After getting information from the client and evaluating the case, the attorney has to sell his services to the client. This requires that the attorney convey to the client the approximate value of the case and confidence that the attorney can accomplish the client’s goals.
 
At times, the client’s goals will be unreasonable. It is up to the attorney to convince the client as to what is reasonable. At the same time, the attorney must be willing to achieve as much as possible in the client’s best interests. For example, a client is being sued for lead paint poisoning affecting a child. The facts might suggest that it is unrealistic that the client not be held responsible. However, the attorney can explain that there might be avenues that would limit the client’s exposure.
 
It is most important that the attorney be candid and realistic in order to avoid problems with the client. The candor displayed by the attorney in discussing the case must also be used in discussing the attorney’s fees.
 
FEES
 
An attorney’s fee is dependent upon the type of case involved. In personal injury plaintiff claims, the attorney usually takes a contingency fee, a fee that will be paid only if the attorney is successful. In personal injury defense claims, the attorney is paid an hourly fee. For certain types of benefits, such as worker’s compensation or Social Security disability, the attorney may be limited to statutory percentage amounts.
 
The predominant method of billing by law firms is for hourly fees. In some cases, the losing party in a lawsuit is responsible for payment of the prevailing party’s legal fees. Courts most often use the lodestar method of determining the amount of fee and costs are reasonable and should be paid by the losing parties. This method takes into consideration the expertise of the attorney, the prevailing hourly rate of similar attorneys, the complexity of the matter, the reasonable time for each action, any frivolous actions or duplication of efforts, and any contract for fees.
 
For a discussion on attorney fees, see 1-4 How to Manage Your Law Office § 4.02.