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  Feature

In a Tough Economy, the Importance of Effective Client Screening

November 2008

Making appropriate screening decisions prior to taking on a client's matter is always important; but even more so in a tough economy. Here are some recommendations that will help you make the critical judgments necessary to determine if potential work is right for you, your potential client, and your bottom line.

As our economy tightens, the always important process of effective client screening becomes even more critical to the success of your practice. At all times, but especially in tough economic times, you do not want to panic and just say yes to every inquiry for representation that you receive. Screen for clients and matters that are right for you.

THE INITIAL CONTACT

Some clients can be screened out at the phone inquiry stage. Establish a firm policy that before you speak with any potential client, be it by phone or in person, you must have their name, address phone number(s) and e-mail address, the general nature of their matter and parties involved in the matter. If a prospective client will not give you this information you will have already screened out what could prove to be a difficult client who is not prepared to comply with reasonable requests. A client who doesn’t listen to you in the beginning generally does not listen to you any better as the matter progresses.

With the initial contact, parties and matter information you will be able to:

1) determine if the matter is one you are qualified to handle

2) complete your conflicts check and

3) send out your non-engagement letter if you decide not to accept the matter; or send out an appropriate information packet to your prospective client before your initial interview.

YOUR INITIAL INTERVIEW

Your initial interview is a further opportunity to screen cases and clients unsuitable to you, thereby leaving you with the time and resources to provide excellent client service to those clients you choose to represent.

At the intake stage, conduct an in depth interview to determine if this is a client and a matter that you want to accept. Listen carefully to what the client is saying, and not saying. Ask probing questions to learn more about the client and the matter. Determine the potential client’s expectations and assess the reasonableness of those expectations.

Explain the legal process in detail including the range of possible outcomes, time lines, fees, retainers and ongoing payment schedules. Before accepting a new matter, evaluate the cost and the risk to you of this client and this matter. Also evaluate if:

  • you are qualified to handle the matter
  • you have the time and resources to handle the matter, given your current case load and your other professional and personal responsibilities
  • the client’s expectations are attainable
  • the client is willing and able to pay for your services
  • the client is someone you want to work with and for

Some clients and some client matters are not the right ones for you. Recognize and listen to that negative gut feeling you get when you first interview a potential client.

Use your best judgment but generally decline a client who:

  • has unreasonable motives or a hidden agenda
  • resists paying the required consultation fee or retainer
  • has unreasonable expectations about the outcome, cost or time involved
  • wants you to guarantee a particular outcome
  • has a negative attitude towards attorneys
  • has been represented on the same matter by a number of other attorneys and has no credible explanation as to why those relationships ended
  • doesn’t take responsibility for his or her own actions, arrives at your door at the last minute and expects immediate attention
  • doesn’t want to accept an objective evaluation of the case
  • wants to eliminate necessary steps in the presentation of the case to reduce costs.
  • expects rushed closings or transactions and is pressuring you to do something that just doesn’t feel right

This type of client is generally high maintenance and crisis producing. He or she consumes significant time and energy and may be slow in paying, if they pay at all. This is often the kind of client who will make malpractice claims and discipline complaints.

If you chose to represent this type of client use appropriate safeguards to reduce your risk. Be extra vigilant in documenting all meetings and conversations. As with all clients, write detailed letters confirming advice given (including possible outcomes) and instructions received.

If you choose not to represent a potential client make this very clear, and do so in writing, Declination letters are crucial to effective risk management. Return any documentation received from the client at the end of the interview or with your declination letter. If there may be relevant limitation period advise the client of this possibility and advise the potential client to immediately contact another attorney if they wish to pursue the matter. Keep the contact information, declination letter and interview notes.

WHAT NEXT - YOUR RETAINER AGREEMENT

Once you have agreed to represent a client on a particular matter reduce that agreement to writing. This is done in your retainer agreement, or engagement letter. These terms are often used interchangeably.

A well-drafted retainer agreement, appropriate to the client and the matter, gives you the opportunity to educate your client on the legal process and creates the foundation for a good working relationship with your client.

A retainer agreement, the terms of which are implemented, is a valuable tool that will aid in:

  • Client service/client satisfaction
  • Business development
  • Financial management
  • Risk management.

Client Service/Client Satisfaction

A comprehensive retainer agreement gives you the opportunity, at the outset, to communicate effectively with your client about the process and to set out clearly the roles and responsibilities of you and your client. An agreement that is clear on the services to be provided, your policies and procedures, as well as the legal process, instills client confidence and sends the message, at the outset, that you are serious about and committed to client service. An informed client is a more satisfied client, and one who is easier to work for and with.

TIP

Spending the time up front to develop a detailed retainer agreement will save time over the course of your engagement and will result in a better informed and more satisfied client.

Business Development

Clearly setting out the attorney and client roles and responsibilities in your retainer agreement helps manage client expectations. Clients whose expectations have been managed well from the outset are generally satisfied with the results achieved. They are the ones who willingly pay their accounts on time and who refer like-minded clients to you. Satisfied clients are a source of the type of referrals needed to build your practice and maintain a healthy bottom line.

TIP

Recognize the value of your bottom line in a well-drafted and well-implemented retainer agreement.

Financial Management

The retainer agreement that clearly sets out billing options, payment methods, payment schedules, interest-rate charges, and disbursements (expenses) as well as the consequences of non payment conveys the message that you value the work you do, and that you expect to be paid for it on a timely basis. Clients who understand your billing process up front and agree to retain you on the terms you have set out are more likely to pay on time, thereby resulting in fewer unpaid accounts and a better cash flow.

TIP

Have your billing process, including billing options, billing schedules, payment schedules, payment methods, interest, and consequences of non-payment clearly set out in your retainer agreement. Be sure to implement the billing procedures you have outlined in your agreement.

Risk Management

A retainer agreement that clearly sets out the scope of your retainer, as well as any exclusion, is a valuable risk management tool.

A signed retainer agreement reduces to writing your contract with your client. It allows you to clarify for yourself and your client what you have been hired to do, and what you have not been hired to do, thus reducing the possibility of misunderstandings that can lead to a malpractice claim or discipline complaint.

In being unambiguous that you will not be providing legal services relating to any other matter, unless a separate retainer agreement is signed, you reduce the risk of a client thinking you are representing him/her/it on other matters they may have discussed initially or during the course of your engagement.

A client who will not sign a retainer agreement and will not pay the requested retainer is generally a high risk one, who takes extra time and energy from you and your staff. He/she/it is also more likely to not pay your bill and is more likely to start a negligence claim against you or file a professional responsibility complaint against you. Is this the type of client you want to represent?

TIP

Have a separate retainer signed for each new matter. If, during the course of your retainer the terms of your engagement are varied, these varied terms should be reduced to writing for signature by you and your client. Maintain all of these agreements when you cull and close your file. Also, think carefully before agreeing to act for someone who won't sign a retainer agreement and pay the requested retainer.

Jay Foonberg in his book How to Start and Build a Law Practice, 5th Edition, Law Practice Management Section, American Bar Association, 2004, outlines essential points to include in a fee and representation letter. Consider these when developing your retainer agreement. Another valuable resource for sample retainer agreements is your state, province or local bar's Practice Management Advisor. Contact information for the Practice Management Advisors of North America is posted on the ABA's Law Practice Management website.

The Impact on Your Bottom Line

A carefully crafted client screening process coupled with a comprehensive retainer agreement lays the foundation for the development and growth of your practice, representing quality clients, who appreciate your work, pay for your services and refer like-minded clients to you.

The time, energy and financial resources you might otherwise have spent dealing with difficult and/or non-paying clients can instead be spent on professional development, marketing your practice, improving efficiencies and working for clients who are paying you. Effective client screening can only improve your bottom line!

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About the Author

Deborah E. Gillis, Q.C., is the Risk and Practice Management Advisor for the Lawyers' Insurance Association of Nova Scotia. She writes and speaks regularly on various risk and practice management topics She is also a member of the LPM section of the ABA and of Practice Management Advisors of North America. She can be reached at DGILLIS@lians.ca.

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