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Quick Tip - The Surprise Attorney, Client Relationship and Legal Malpractice

Shutterstock_494995993 - casual conversationAll attorneys know that the Rules of Professional Conduct prohibit conflicts of interest, yet conflict of interest claims often arise, despite an attorney’s efforts to avoid risky situations. This is often due to the “surprise attorney-client relationship” factor

Proper Client Intake to Eliminate Improper Relationships

Not every attorney-client relationship begins in the traditional way, either by a client calling an attorney on the phone on coming to his office to inquire about legal services. More and more often attorney-client relationship is implied, based on a pattern of communication between the attorney and another person.

This communication often begins with a legal question about a particular circumstance raised during a casual conversation at a social function, rather than through a formal letter of engagement or a retainer agreement. If the inquiry involves seeking and the subsequent rendering of legal advice, an attorney-client relationship may have been established, giving rise to a conflict of interest related to the confidential information received from an actual or potential client.

Identify Conflicts Sooner Rather than Later

Many law firms have the mistaken belief that legal representation is permissible as long as the client consents, but this is not necessarily true. There are some conflicts that cannot be waived and to which clients cannot consent, even if they wish to do so – attorneys cannot represent both the plaintiff and the defendant in the same lawsuit, for example. Therefore, it is extremely important that this determination is made long before a lawyer agrees to provide representation.

Effective practice management involves a clear file-opening procedure that includes both a comprehensive client intake process along with the resolution of any potential conflicts of interest before representation is given. To accomplish this, an attorney must first properly identify the potential client before providing any legal advice, or a malpractice lawsuit may be waiting in the wings.

To learn more about how efficient client intake procedures can lower your firm’s risk of malpractice lawsuits, contact USI Affinity today.


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