Wednesday, February 24, 2016

Caution on Clients, Conflicts and Complexities




An excellent article from several lawyers at Dentons: “Casual Advice Can Be Binding: Whoops – Legal Malpractice Prevention
  • “The economic pressures of the modern legal practice have pushed many attorneys to accept engagements close to the line between permissible and impermissible conflicts of interest. Some law practices assume that, if the anticipated fee is large enough, the conflict must be resolvable. Unfortunately, when such representations turn sour, the law firm or its insurer typically faces a payment to the former client.”
  • Effective practice management involves clearly articulated file-opening procedures that include both client intake and the resolution of potential conflicts of interest. The most effective practice procedures begin with the important step of properly identifying the client.”
  • “Contrary to popular belief, not every attorney–client relationship begins with a prospective client who walks in the door and asks an attorney for legal services. Instead, attorney–client relationships can be implied from the facts and circumstances surrounding a pattern of communication between an attorney and someone else. In today’s Internet world, these kinds of implied representations are becoming more and more frequent. Often they begin with a legal question about a particular circumstance. Other times, they start with an actual solicitation for legal advice.”
  • “Theoretically, identifying clients prior to the rendition of legal services and strictly adhering to the law practice’s intake rules should be sufficient to avoid a conflict of interest. The tough part for some attorneys, however, is the degree to which a single representation may involve more than a single client. When that happens, the matter is a multiple representation requiring all of the associated conflict resolution procedures.”
  • “A good example of this involves representations in probate matters. One person may ask the attorney to represent the executor, estate, and beneficiary of an estate simultaneously. Or an attorney may be asked to represent both the president of a closely held corporation and the corporation itself. In each situation, it might appear that all the potential clients are, in reality, a single person. Yet, for purposes of the conflict of interest resolution procedures, each separate capacity and each separate entity is a separate client.”

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