7 tips to handle those ‘just one question’ potential clients
Nadine C. Atkinson-Flowers.
There is always going to be the "just one question" potential client who makes initial contact with you. Often, they may not paint the whole story for you, and you in turn may give advice on incomplete facts. In essence, you may well find yourself in a dilemma.
Understand that this is a prospective client. The ABA Model Rule of Professional Conduct 1.18 defines a prospective client “a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter …”
What are your obligations, if any? What do the ABA Rules say? How do you protect yourself in the event of being accused of giving legal advice, especially if the person suffers harm after acting on what you said or “advised”?
The following suggestions can be useful:
1. Try to determine from the prospective client if the matter discussed is one you can properly give advice about.
Early in the conversation, this should become obvious. If the potential client asks a general question, you can continue to talk with them, but if it is an area of law that you do not practice or do not have experience in, then it is prudent to indicate this. Increasingly, people have legal questions that affect various areas of law. Their problems and questions may even involve the legislation from another country. Recognition of this saves time for you and the prospective client. For me I have found that sometimes I am so intrigued by the legal areas involved that I might not do this early enough, so I try to be mindful here.
2. Advise the prospective client that you can only give the most basic advice without a full discussion of all the issues that might be involved.
People believe that as a lawyer you should have the magic answers to even the most nuanced questions. Perhaps that is why they say they have “just one question.” But as we all know, every case is different on its facts. Our clients and prospective clients often assume differently, and they will say their case is “similar to a case person X had.” The prospective client has to fully understand as the discussion progresses that you can’t offer anything more than a cursory opinion, and even that is severely limited.
Sometimes, if I am offering a free consultation, I also make an appointment for a longer discussion. I make that call at some point in the initial discussion. Other times, I advise that a paid consultation might be better and let the client decide if they will go forward. Sometimes they do, sometimes they don’t. This approach gives me some peace of mind as I worry less that I might have advised poorly because of lack of information.
3. Indicate that you might need to see documents that the prospective client may have to help guide any basic advice from you.
Who has not had a client or prospective client indicate authoritatively that this or that is the issue? However, when you actually read the documents that are provided, there is some other issue that is crucial. In my immigration practice, a prospective client said that the U.S. Embassy in Jamaica needed a letter detailing certain things from them. I wondered aloud why and asked to see the document. It turned out that the letter was being requested of another person. Moral of this story, if I had not asked, I most likely would have given bad advice, and it could have led to a denial or delay for the person’s immigration benefit. An aside: The prospective client decided not to use my services despite what I thought was a brilliant discovery on my part.
4. Make it clear that any advice is based on what the prospective client indicates and nothing else, and make a note of whatever advice you did provide.
Where you do give advice, state that you are limited to only what they are telling you and perhaps even reiterate that they should have a detailed discussion with you. A rule of thumb could be that you limit yourself to saying, for example, that a certain statute is still in effect in a certain state, or that there is a statute of limitation on certain offenses such as personal injury claims. The guiding principle is that the advice should be the broadest as it relates to what the prospective client is asking about.
5. Establish if you might have a conflict of interest with another matter, and of course, quickly decline to continue any discussion if that is the case.
Some prospective clients actively seek to conflict out a lawyer. I am sure we have never met such characters. However, if ever you meet such a person and there is a potential conflict, it is your duty to quickly end the discussion. A clear example could be in a divorce proceeding, where you are acting for the wife/husband and the other spouse contacts you, unwittingly or otherwise. However, there could be less obvious situations, so you would have to at least hear some of the details before realizing that there is a conflict of interest.
6. Identify when they have another attorney retained in the matter and make it clear that you cannot discuss their case, since they have another lawyer who they are asking you to second-guess without all the details.
Sometimes, a prospective client contacts you, and based on the discussions, it is obvious they have retained an attorney already but may still be shopping around to see who offers the advice they want to hear, not necessarily what is legally possible. If this happens, it is useful to ask if they have another lawyer. Some will say yes, but they want a second opinion and are willing to give you what is needed to do this. That is perfectly fine in my view. Others want an opinion aligned to their thinking–or worse, for you to second-guess their current lawyer. This is a difficult position, and the prospective client must be told this.
7. Examine if there are any ethical issues that you should steer clear of/recognize in the discussion.
This should be an easy one, but sometimes there are gray areas, as you don’t see the ethical issues until the conversation progresses. For example, a conversation might suggest the commission of illegal activity, but you have to immediately stop the person when you realize where they are headed.
The “just one question” will always exist, but hopefully we can meet its challenges.
Nadine C. Atkinson-Flowers is admitted in Missouri and Jamaica. She practices virtually and in real time, and she focuses on U.S. immigration and Jamaican law. Her email address is [email protected]
ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.