Suggested Best Practices

    Set the Precedent for Your Firm with Documentation
    • Have formal written policies and procedures in place for your law firm
    • Outline expectations regarding documentation for everyone in your firm
    • Use tools such as checklists for your files to help ensure consistency
    • Don’t assume that a consistent approach is being taken without setting the standard and auditing files to confirm
    • Have an employee handbook
    • Don’t forget to review the policies and procedures of the firm with new employees
    Client Intake Documentation
    • Initial information gathering
    • What to Ask for:
      • Name
      • Business contacts and affiliations
      • Approval for financial background check
    • What to Not Ask for:
      • It’s a good practice to not ask details about the case until running a conflicts check.
    • How to Ask (involvement of non-lawyer staff):
      • Initial information can be collected by non-lawyer staff to ensure that the attorney doesn’t learn too much information before ruling out possible conflicts of interests.
      • See “Sample Forms” for a listing of forms.
    Engagement, Non-Engagement, and Disengagement Do’s and Don’ts
    • Engagement Letters
      • State who the client is and is not.
      • Outline fee structure.
      • Outline services to be provided.
      • Discuss responsibilities of the attorney and the client.
      • Note important dates.
      • Don’t ask your client to agree to representation so limited in scope that you violate Rule 1.1.
    • Non-Engagement Letters
      • When declining a matter, send a non-engagement letter to everyone with whom you discussed possible representation, even if you represent the same client on other matters.
      • Recommend that the matter be taken to another attorney of the person’s choosing as soon as possible.
      • Send the non-engagement letter through a method where you can receive proof of receipt of delivery.
      • Don’t mention specific deadlines without careful consideration and research.  Review state law to determine your duty to identify statutes of limitations and other deadlines.
      • Don’t cite the specific reason for declination or indicated that you believe that the case is without merit.
    • Disengagement Letters
      • Provide a dis-engagement/termination letter when your representation on a matter or for a particular client has ended.
      • Be clear that the representation has been terminated, and include a date of termination.
      • Provide a summary and status of the matter.
      • Identify the client.
      • Document the return of original documents and inform the client of your document retention/destruction policy.
      • Don’t close a file in your database without first sending the client a disengagement letter.
         
    Conflicts of Interest Documentation
    • Conflicts of Interest Procedures
      • Remember to check not only the lawyer’s conflicts of interest but also the conflicts that members of non-lawyer staff may have with a client matter.
      • Ask potential clients about affiliations and business relationships.
      • Utilize the Internet to research links between companies.
      • Get a second opinion. It’s a good idea for the firm to make it a standard practice for another partner to review a case before it is accepted. Something that may not be seen as a conflict by one partner, may be a red flag to another.
    Conflicts of Interest Systems
    • Ensure that any system that you are utilizing to check potential clients against former or current clients for conflicts is up to date and that any client listed as a “former client” has been sent a disengagement letter to document that they are a former client and not a current one.
    Conflicts of Interest Waivers (Informed Consent) Do’s and Don’ts
    • Do know that NOT all conflicts can be waived and engage in a thorough review of your jurisdiction’s Rules/Code of Professional Conduct and Ethics Opinions on Conflicts of Interest before considering if a waiver is permissible in a particular situation.
    • Have your client sign a written waiver which contains a full disclosure of the conflict. If more than one client is involved in a conflict, have all clients sign a waiver.
    • Request a waiver from the opposing party if the conflict arises because of your current or past representation or relationship with an adverse party in litigation.
    • Don’t consider the conflict waived without full disclosure and a written waiver.
    • See “Conflicts of Interest” for more detailed information on problems that can arise with prospective, former, and current clients, as well as tips for avoiding hazardous situations.
    • See “Sample Forms” for a listing of state bar associations that provide manual conflict of interest check forms.
    The Proof Is in the…Paperwork
    • Don’t rely on your memory or on the client’s memory - memorialize in writing all important decisions in the case, using:
      • Time records
      • Emails
      • Memos to the file
      • Helpful technology
    What Belongs to the Client and What Belongs to the Attorney?
    • Review the Rules/Code of Professional Conduct in your jurisdiction to confirm your obligations in transferring files and other documents and information to your client.
    • Be sure to timely respond to requests for the transfer of documentation requested by your client or your former client’s new attorney.
    To Keep It in the File or Not to Keep It in the File?
    • Keep a record of engagement, non-engagement and disengagement letters.
    • Keep a copy of receipts of notification.
    • Keep a copy of signed waivers.
    • Keep a copy of decisions memorialized in writing.
    • Adopt a policy about handwritten notes - formalization, retention, etc.

 

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Risk Management Best Practices Database Legal Statement

Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.