We all know what they say about running with assumptions. Trouble can so easily rear its ugly head when we do; and in the practice of law, that unfortunate outcome can be problematic. From a risk perspective, role clarification coupled with proper documentation can help prevent this kind of trouble particularly if done consistently. The trick is in trying to identify all the times when an assumption might be in play so that appropriate steps can be taken. My best advice in this regard is to suggest that you try to place yourself in your client’s shoes and consider what they might be thinking about a conversation or how they might be responding to a given set of circumstances. Simply stated, learn to come at it from the other side of the attorney/client relationship.
Perhaps an example is in order. I can appreciate what a personal injury plaintiff attorney might hope to accomplish when placing a scope statement along the lines of “I will handle any legal issue that arises out of the accident of such and such a date” in a contingency fee agreement. It’s a desire to keep the door of opportunity open. The unknown with this is going to be in how the client interprets such a statement and too often that is what’s assumed. They’ll see it like you do, or will they? What if the client now expects that the attorney has also agreed to handle a related traffic citation, an eventual divorce action, or a wrongful termination claim any of which had some tie to the accident? After all, life can be messy. There is value in clarifying your scope of representation before you get caught up in a client’s mess. Define in writing what you are agreeing to take on and, particularly with any kind of limited scope representation, consider also documenting what you are not going to take on. Willing to handle the personal injury but not the work comp component of a claim? Again, then clarify your role and document in writing always making certain the client understands what you are and are not agreeing to do.
Now, with the above in mind, consider the following. Adult children schedule an estate planning appointment for their parents after first meeting with you. A corporate client asks that an opinion letter be drafted for sophisticated investors. At a real estate closing the purchasers asks you, the lender retained attorney, a legal question. A non-client calls your firm for a quick bit of advice on a small matter. A family friend asks for your thoughts at a social function. One of the corporate officers of a firm client asks for legal advice from you, a firm attorney/corporate board member. Or perhaps the adverse party in a matter you are involved in is preceding pro se and has a question. At ALPS we have dealt with claims that have arisen out of all of these situations and many more just like them. However, while I am certain that in any of these situations you would know what you believe your role to be, it’s important to remember that actions speak louder than words. The interesting question is whether the individual or individuals that you would be interacting with will see it similarly.
Role clarity is critically important in all the above situations and this should almost always be done in writing. Come at it by taking a moment to ask yourself if the individual or individuals you’re interacting with might view you as providing legal advice to them given the totality of the circumstances. That perspective can help clarify your thinking. Just as important as the documentation piece will be your ability to remain consistent in your actions over time. In other words, and in spite of documentation to the contrary, your subsequent actions can unintentionally create an attorney/client relationship with a related party and that can be a real problem. If you state and document that you represent an entity yet through your actions and advice begin to allow a corporate constituent to conclude you also represent her, that may very well end up being the case and now you’ve got more than just a conflict problem.
How far do you go with this? Sometimes a lawyer will share that they viewed some small thing as something other than legal work. They will say “This was just a favor for a friend and I was going to look into it when I could.” I love that one. The lawyer apparently assumed the request for help was viewed by the friend as a simple favor and nothing more. However, what if the friend actually felt that their small legal matter was now in the competent hands of their attorney/friend and they expected nothing less than an excellent outcome? Should you ever find yourself in a similar situation, remember that it was you who voluntarily placed yourself in the role of attorney. View the favor as real legal work and follow-up in a timely and responsible fashion. Understand that friends, family members, and even staff will sometimes sue if their matter is forgotten about or handled negligently and the fact that no fee was involved is going to be irrelevant. The standard of care isn’t going to be any less just because you agreed to provide your services for free or viewed the matter as a favor. Assumptions come into play more often than I think many of us realize and they can lead to serious problems if we never question them. To assume otherwise is…. well you know the rest.
A version of this article first appeared on the blog of Solo Practice University. I invite you to take a look at what is another useful resource for information about managing one’s practice.