Hindsight is 20/20: Don't Accidentally Create an Attorney-Client Relationship

Second Blog Piece in the “101 Things They Don’t Teach in Law School” Series

A Series of Blog Pieces Commenting on Karen Thalacker’s

The New Lawyer’s Handbook: 101 Things They Don’t Teach You In Law School

Section 3, Number 17, Entitled:

“DON’T GIVE ADVICE TO STRANGERS OVER THE PHONE”

Note From: Professor Ben Madison.

            For those who need a primer on proposed changes in law schools, they can see a summary of the Carnegie Institute’s Findings and Recommendations at http://educatingtomorrowslawyers.du.edu/about-etl/carnegie-recommendations.

            Despite the credibility of the source, and the convincing evidence the full report makes for needed change, great resistance within the legal academy exists.  See Katharine Mangan, As They Ponder Reforms, Law Deans Find Schools “Remarkably Resistant to Change,” THE CHRONICLES OF HIGHER EDUCATION (JUNE 13, 2012).

            Carnegie was wise enough to include the “lost” voices in the above debate (also see our previous blog on “lost voices” here)—current law students and practitioners who have an opinion on whether Carnegie’s recommendations would have provided them a more valuable education than they received.  This blog, too, encourages current law students and practitioners to review the Carnegie summary of changes, reflect on their law school experience, and be heard on whether they favor change or not.  For change to occur, as suggested above, support will have to come not only from academics that believe Carnegie is on the mark but from students and practitioners as well.  The series below is the Second Blog piece in the “101 Things They Don’t Teach in Law School” Series.  This blog is written by my Graduate Teaching Assistant but is, as with all blogs proposed, reviewed by me.  For those concerned that I might censor views, please know I intend to publish views pro, con, and in between and merely exercise some assurance that appropriate language suitable to such a debate is used.

            Therefore, with this blog and all others to come in this Series, everyone is strongly encouraged to participate in an interactive and collaborative discussion.  We look forward to hearing from all of you.  It does not take very long, so sit back, relax, and tell us what you think.  As always, thank you for you interest in our blog and the legal education reform movement.

            Cordially,

            Ben Madison

            Professor of Law

            Educating Tomorrow’s Lawyers (ETL) Fellow

            Regent University School of Law

DON’T GIVE ADVICE TO STRANGERS OVER THE PHONE

Every law student has or will take a course in Professional Responsibility.  During that course, the subject of creating an attorney-client relationship will inevitably come up.  When the subject does present itself, LISTEN UP!  Because the topic is often tucked among a bunch of other ones, many underestimate the ease by which—in live day-to-day practice—one can create an attorney-client relationship, receive confidential information, and conflict oneself out of representation.  Indeed, paying attention here can save you in the future from having to deal with a legal malpractice suit.

Karan Thalacker, author of, The New Lawyer’s Handbook: 101 Things They Don’t Teach You In Law School (2009), opens this section by offering the following hypothetical scenario:

“A crying lady calls your office and your assistant begs you to talk with her.  You don’t realize this at the time, but the lady does not have the money or the intention to hire you.  She keeps you on the telephone for a half hour telling you her whole story.  She then asks you what you think and gets whatever free advice you give her.  Six months later you are served with papers.  You are being sued for a failing to tell her what the filing deadline was and now the statute of limitations has run.”

(Thalacker, p. 49).  In reading this short passage and very common scenario, Thalacker demonstrates just how easy it is to wind up in a mess—especially one that was never intended.

She goes on to give three basic suggestions for avoiding this potentially harmful situation.  First, instruct your assistant to inform the caller that you do not give legal advice over the phone and that an appointment should be set up.  Second, if the person does get through to you and is persistent, again, give the standard response just suggested.  She advises that people can have a way of digging out information, so keep your guard up and be careful.  Third, and most important, document the call.  You should take basic notes, such as the caller’s name, contact information, and details of the situation.  Then, throw the information into a “Potential Client” file.  If you should ever be sued, then you will have a paper trail as backup.

Although still a student, I have learned, through various internships and through multiple mentors, that documentation is perhaps the most important part of legal practice.  One habit good lawyers apparently practice is to documenting everything.  In fact, the very first attorney I ever worked for told me that this was the one golden rule she follows, without fail, on all cases.   It is especially important for her, as she handles a lot of court-appointed, criminal cases.  She instructed me to always build the best case and defense for my client.  However, at the same time, I should also build a protection from my clients’ alter claiming things against me that are not true.  Human nature is what it is:  if a client does not get what she or he wants, the client often is unsatisfied and will blame the lawyer.  That could take the form of a bar complaint or a malpractice suit.  The client can then “remember” things in a different light unless the lawyer—me—has documented facts contemporaneously.

Okay, so all of this is the more practical aspect of protecting oneself and not giving legal advice to strangers.  Let’s go ahead and talk about the elephant in the room.  Why is it common sense to not give advice to strangers—especially over the phone?  Because an attorney should always be cautious about creating an attorney-client relationship when one is not specifically intended.  In fact, even when someone comes in for a consultation, if he or she does not sign a retainer or engagement agreement, I advise having them sign a document stating that an attorney-client relationship has not yet been created, and will not be created until I and the prospective client agree in writing in an engagement letter to do so.  Again, this is just smart practice and covering all of the bases for protection.

Now, is there an ethical and professional level to this subject that is not quite so obvious?  Of course there is.  Let’s add on to Thalacker’s scenario above.  Let’s now assume that the caller did intend for you to be her attorney and represent her.  However, what if you represent the opposing party, or have in the past represented the opposing party?  A good and cautious attorney knows to get the names of all potential adversaries and to run that list through your database of clients.  Under ethical rules, you could not represent the caller if you are currently representing the adversary about whom she is calling.  If you have ceased representing the adversary, you could represent the caller if the new matter and prior matter are unrelated.  Also, even if the matters are unrelated, it is still probably wise to obtain consent from the former client for safety precautions.  The point is that you will not know whether you can represent the caller until you go through this key step of checking for potential conflicts.  It has to be routine practice for any good and thorough attorney.  Letting a potential client get into details can, if you currently represent the adversary, end up forcing you to forego representing that party because you did not cut off the caller.

Issues such as this one are not always specifically addressed in law school.  So, how are law students and new graduates supposed to obtain this advice unless they have a mentor or past experiences?  The answer lies within the hands of law schools.  Obviously, an entire class does not need to be spent on this.  A professor who demonstrates a “mock” call from a client and how the client can start spilling information before the attorney gets to say “halt” would teach the oint more effectively than just telling the class about the risk.  Innovative ways to present this topic could be done through a live skit or even a previously prepared video.  In addition, having a panel of local attorneys coming in and speaking about previous and personal experiences would be an excellent way to catch the attention of students occupying seats in a classroom.  Just stating the obvious is not always enough.  Students get distracted like everyone else and such a crucial point deserves emphasis.  I have been lucky enough to have excellent internships with attorneys that cared to take the time to teach me these lessons.  However, not everyone is so blessed.  Thus, law schools must pick up the slack for those that do not receive the information elsewhere.  It is not enough to simply teach legal doctrine.  Law schools must also remember that the common traps attorneys can fall prey to should be introduced as well.  I for one firmly subscribe to the notion that a law school should prepare students by giving them the tools necessary to avoid ethical dilemmas and potential malpractice suits.  This just may possibly cut down on legal bar complaints and malpractice suits because the new attorneys will be ahead of the game and already protected.

As mentioned by Professor Ben Madison, in the preface, current law students and practicing attorneys that did not receive this information during their law school tenure are strongly encouraged to join the discussion and offer thoughts on this matter.  We are interested in beginning an open and non-biased discussion with all those concerned.  Additionally, as with each new blog entry for the “101 Things They Don’t Teach In Law School” Series, we will always encourage and look forward to open discussions.  We hope you will take the time to interact with us.

--Melissa Yatsko, Graduate Teaching Assistant & Legal Education Reform Initiatives Student Coordinator, Regent University School of Law