The Risk Manager, Summer 2000
A necessary, but often frustrating, aspect of providing legal service to the public is fielding numerous telephone calls throughout the day that can mean important new business or just be another tire kicker looking for free legal advice. There is an art to risk managing these calls to be sure that new business is encouraged, time is not wasted, and unintended attorney-client relationships with malpractice exposure are avoided. Michael M. Bowden in “How To Handle Phone Inquiries From Potential Clients” (Lawyers Weekly USA, 99 LWUSA 1046 (11/15/99)) recommends office procedures that screen all incoming calls, get the caller’s contact information, get the names of other parties involved in the matter, and establish when the “inquiry” becomes a consultation.
A good screening technique is for a well trained secretary or paralegal to weed out calls concerning matters the lawyer does not want to take, provide the caller with information of the type of service the firm offers, explain typical fee arrangements, and ask the caller to make an office appointment or schedule a return call from the lawyer. If the caller is interested, contact information and names of other persons involved in the matter are then obtained. It should be made clear to callers that they are not yet clients of the lawyer – only the lawyer can accept the matter.
Lawyers receiving calls directly should first get contact information and the names of other persons involved before discussing facts. Since you cannot do a complete conflict check until you are off the telephone, limit the initial discussion to the essential facts necessary to evaluate whether to pursue the retention. A good practice is to have a phone consult pad on your desk to record this information. Assign each call a consultation number and file the consult sheet chronologically in a binder. Send non-engagement letters if you choose not to take a matter and file it with the consult sheet. A good letter thanks the potential client for calling, includes any advice given along with a reminder of limitations concerns, confirms that the matter was not accepted, and encourages the person to call again.
The hardest part is controlling when an inquiry turns into a consultation with attendant duties. Since the attorney-client relationship may be implied from the circumstances without explicit acceptance of a matter by the lawyer, assure that the caller understands that the matter has not been accepted simply because the lawyer has taken the call. According to Bowden “most lawyers say the ‘inquiry’ stage ends when the call crosses the thin line between ‘quick question’ and full blown consultation” Some lawyers never give advice in response to a cold call. Others will if the caller has been referred by someone they know or the caller is a current or former client. Sometimes you just have to go with your intuition, but complete the consult sheet and get the contact information. Don’t forget that advice given during a preliminary consultation exposes you to a malpractice claim even if you later decide not to take the matter. Keep it to a minimum until you are getting paid.