We’ve all been there. A call comes in. Usually it’s a referral from another lawyer whose name you may or may not recognize—in my case, a referral for employment law matters. The person on the other end of the phone asks for just a few minutes of your time to ask just a couple of questions. And after trying to interject to try to warn of conflicts issues, you realize well before a tenth of an hour has passed that you’re being interviewed by the prospective client for possible representation.
If you’re lucky, the referring source has spoken highly enough of you or has a good enough reputation of his or her own that this interview is short, sweet and mostly a formality. If you’re not, the rest of the conversation may depend on how well your day is going, your level of patience that particular day and, most likely, your current workload.
In any event, the question arises: should we, as lawyers, interview for the job with each of our clients? And, if so, what is the threshold for a reasonable inquiry? (This is not an ethics piece and assumes you are able to negotiate the sometimes awkward conversation regarding conflict issues during in-take calls.)
Of course, none of us wants to give away too much free advice. After all, it’s that secret sauce that we have developed over the course of our careers that holds the real value.
When I was starting out, I often told people that I couldn’t possibly solve their complex legal problems in just a few short minutes on the phone, but that rarely dissuaded people from trying. I figured there had to be a better answer.
Over time, I decided to charge a consultation fee. But when I sense hesitation on the other end of the phone to even spend that relatively small amount, I’ve developed a brief script that that goes something like this: “I am about to download 18 years of legal experience to you in about an hour, and after that you’re going to have just about everything you need to know to handle this matter yourself.”
I think that does a few things: (1) it provides a limit on out-of-pocket costs for the caller; (2) it tells him or her that I’m going to dedicate my full time and attention to the matter; and (3) it creates an easily packaged approach that he or she can accept or reject.
But even then, how detailed should we get in our explanations, particularly with complex matters that can’t be solved in an hour-long consultation? How much grilling should we be willing to take in testing our experience, ability or strategy? On the other hand, what is a prospective client entitled to know about one of the most significant hires of their lives?
I recently found myself bemoaning (hence the impetus of the piece you are now reading) that a client was grilling me about my qualifications to handle a non-compete and trade secrets case and doubting out loud whether we were even a good fit. I even cracked that the next time I walked into a doctor’s office, I was going to spend the first 15 minutes inquiring about the number of similar procedures the doctor had made, the doctor’s philosophy on surgery vs. alternative treatments and his or her billing practices.
But then I realized, maybe that’s what I actually should do, and what our own clients are entitled, and maybe even should be encouraged, to do.
Certainly, other lawyers are likely the best judges of our abilities, practice philosophies and strengths and weaknesses. Whoever referred the potential client I described did so at least in part upon their knowledge of my employment law practice. But just like doctors, a simple referral may not be enough to determine the likely success of a long-term, attorney-client relationship. On top of that, as one of my colleagues so deftly put it in a recent practice group meeting, giving away advice for free can be great marketing, even if you don’t ultimately earn the business.
So, what are appropriate topics for a prospective client interview?
Rates and Billing Practices. Talk about whether the matter is best suited for hourly billing, a flat fee or some contingency arrangement. But, also, what is your attitude toward tackling the matter? Are you the proverbial bulldog? And if the situation doesn’t call for it, would you have the ability to persuade the client this may not be the correct approach?
Relevant Experience. Have you, in fact, handled similar legal issues in the current forum? Lawyers love to think their skills transfer across all subjects and all settings, but they don’t always. All it took for me was walking into bankruptcy court a couple of times to stand in for a partner for me to realize all of the fish in that sea knew each other and could already smell fresh blood in the water.
Approach. What is your reasonable prognosis for the case? While it is easy to hide behind ethical rules endowing clients with the ultimate authority on important matters, clients look to us as experts in our field, and it is only fair that we disclose some of our knowledge to avoid information asymmetry and the decision-making risks that come with the monopoly of knowledge.
This doesn’t mean presenting an exact roadmap or guaranteeing a particular outcome. Far from it. But this should involve a discussion of alternative outcomes, the various paths to these and, of course, a discussion of the associated costs.
Successful Outcomes. And what if someone asks about your success rate on similar cases? Beyond the canned response that every situation is unique, I think a lawyer should be clear about the merits, or lack thereof, of a particular case. It helps no one, not even the most fee-hungry lawyer, to be less than clear about the prospects of a favorable outcome.
These won’t all be easy questions to answer. And the conversation may not always go as we would like. But, in my view, there’s a reasonable chance that going through this process will bear a number of benefits as the matter progresses. Certainly, there will be greater trust between the parties, the groundwork for clear communication will be laid and expectations, even if unreasonable, will at least be shared.
And, if it doesn’t work out, the process may help avoid a dysfunctional relationship, could steer the potential client toward a more appropriate attorney (even in your own firm), but might also engender a certain amount of goodwill. After all, our profession could always use more people out there willing to champion our candor, reasoning and good judgment.
Marc Gustafson is a partner at Bell Davis Pitt in Charlotte. His practice focuses on complex commercial and employment litigation. Marc is also a certified mediator.