Client Intake & Matter Screening

The most dangerous people to you (from a risk management perspective) are your own clients—the very people you are charged with serving. The best time to protect yourself against “that client” or “that file” (you know – the one above all others that you have anxiety about) is before you accept the engagement.

First, is the dull but necessary practice of running a conflict search. The proper identification and resolution of conflicts of interest are major concerns. It is incredibly difficult to defend a professional liability claim against you where a conflict of interest exists. Judges and juries do not like them. Even if you think they are not a problem, the moment the slightest thing goes wrong, “conflicts” become a big problem.

To avoid conflict problems, before permitting a client or prospective client to provide confidential information regarding a prospective representation, the names of relevant parties and other public facts concerning the matter should be run through a conflicts system. The system can be very basic. In this day and age virtually every professional has some kind of document management or file management system. And all of these have search capabilities. (1) Spend a few minutes searching for relevant names through your current and old files. If you are lucky enough to have one, train your secretary or support staff to do this for you. Make this a simple, but routine part of your practice. Better than that, have this part of your practice reduced to writing, i.e. memorialize the steps you or your secretary go through for each new matter. It pays to have a clear, formal written conflict checking and resolution procedure.

If a conflict exists, it must be identified, and where possible, resolved through the use of an appropriate conflict waiver agreement. Conflict issues must be addressed before proceeding with the matter and prior to deciding if it is in the best interests of both you and the prospective client to take on this matter.

If no conflict is present, you can proceed to the next step in the intake process. When deciding to take on a new assignment, again ask yourself: “is this something I want to do/a person I want to work with?” Here is a short list of basic “self-audit” risk management questions you may want to ask yourself:

What are the client’s expectations?

Are the prospective client’s expectations reasonable?

Has the scope of the representation been made clear?

Is it likely that this client will blame me if things go wrong? If so, should the client be accepted?

Do I need to protect myself from risk exposure by first investigating the prospective client’s background and history, and their objectives before agreeing to the representation?

Has this client had any past conflicts with others, including the filing suit or lodging complaints seeking professional discipline?

Does the client have any unpaid fees to prior service providers and are all accounts otherwise settled?

Have others refused to take on this client or withdrawn from representation?

How will you manage this client’s expectations?

If the client is accepted, what resources/personnel should be involved to handle this relationship?

What do you need to do throughout the life of the engagement to maintain clear and open communications with the client so that the scope of the responsibilities and decisions are made clear?

The answers to these questions will help determine whether a new client poses an unreasonable risk. As the old saying goes — an ounce of prevention ...

Next, be wary of taking on matters outside your core area of expertise. When evaluating a new matter, keep the adage "Focus and Thrive" in mind. You'll do your best work in the areas you know best. Be honest with yourself regarding how much of your bandwidth getting up to speed in a new field is really going to consume. Beyond that, "you don't know what you don't know". Pitfalls for the uninitiated often abound. Don't hesitate to collaborate with a more seasoned professional or simply refer the matter on to a respected colleague.

Finally, heed and develop your calibrated gut. Even if everything checks out, if you feel uneasy about a new client or matter, it's best to pass. In claims handling, we often hear, I knew I shouldn't have taken this one on. 20/20 hindsight is good, but informed foresight is better.

(1) Various specialized software is also currently available to search all active and closed files to ensure up to date conflicts awareness.