Chapter Two – Preparing for the Interview

Learning Objectives

After working through these lessons and practicing the skills presented, you will be able to:

• Identify key information an attorney should gather prior to the initial meeting with the prospective client.
• Describe the advantages and disadvantages of various intake and preparation methods.
• Describe how to screen prospective clients for factors that disqualify the attorney from representation.
• Identify factors in selecting a method and location for the initial interview.
• Describe the importance of nonverbal communication in interviewing a prospective client.

Like any other lawyering task, a preliminary interview with a prospective client requires preparation. That preparation includes gathering preliminary information from the prospective client, preparing a plan for the interview, and confirming the interview. In this chapter we will explore the choices you will need to make in preparing for a prospective client interview.

A. What information should be gathered before the initial interview?

In nearly all practice settings, you will want to gather some information before the first interview. Certain information is critical no matter what the situation. Other information will be helpful in making certain types of interviews more efficient and effective.

There are two stages to this preliminary information gathering. First, you will want to determine whether a prospective client or matter is one that you are able and willing to explore. Thus, you will need to gather the information that permits you to decide whether to conduct an interview at all. For example, you will want to ensure that the prospective client’s matter is within your field of practice. A brief description of the prospective client’s problem and the outcome or assistance they are seeking will suffice for this purpose. Where and when the events or transactions giving rise to the legal matter occurred or are planned is essential for determining whether the matter is within your jurisdiction and what deadlines may apply.

The rules of professional conduct require that attorneys check for possible conflicts of interest. Comments to the Model Rules of Professional Conduct warn that “A conflict of interest may exist before representation is undertaken…”^[1] and directs attorneys to “adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.”^[2] Accordingly, attorneys will want to gather enough information about the client and the other parties involved in the matter to conduct a preliminary conflict check. Keep in mind that this check is not a “one and done” process. You need to continue to monitor for conflicts throughout any representation. For a preliminary check, you will need the client’s full name, the names of any associated entities (businesses, organizations, etc.) and the names of any other parties involved in the matter, along with a brief description of the matter. Asking for the client’s employer can be relevant to conflict checks and may also help an attorney to determine the client’s financial situation.

If a prospective client fits within your practice area and jurisdiction and no disqualifying conflicts of interest are apparent, a second step of intake will be to gather additional information to prepare for an initial interview. How much information to gather depends on the nature of your practice and the nature of the prospective client. More information helps you begin to assess the prospective client and the matter and facilitates a more efficient meeting. However, remember that you owe a duty of confidentiality to prospective clients regarding the information you have gained from them, even if you ultimately decide not to represent them.^[3] The more information you gather, the greater the risk that you will create conflicts of interest that will later disqualify you from other representations.^[4] Moreover, the more information you gather from a prospective client, the greater the risk that the prospective client will expect that you have already agreed to represent them. An attorney-client relationship can be created not only by express agreement or by court appointment, but also by giving advice that a client reasonably relies upon.^[5] You can see, then, that more information is not necessarily better.

B. What are options for intake procedures?

Increasingly attorneys are using technology tools that triage prospective clients through an online form.^[6] These forms might even be provided on the attorney’s website as the sole method for prospective clients to contact the attorney. Most commercial practice management programs include intake forms that integrate with the program’s conflicts, billing, and case management systems. Because these forms limit the amount and types of information a prospective client can provide, they limit the risk of creating expectations of representation or of gathering confidential information that might create a conflict of interest. They can increase efficiency as the information provided can be incorporated automatically into templates for follow-up actions. However, these web-based forms can make an attorney seem remote and impersonal if not balanced with other tools.

For prospective clients whom you decide you do want to interview, you might ask the prospective client to provide even more information ahead of the interview. You might send the client a more extensive questionnaire to bring to the interview or you might ask them to complete a form in the office while they are waiting for their appointment. These intake forms can allow the client to provide detailed information privately at their own pace and can ensure that you have gathered all basic biographical information, facts about the legal matter, and conflicts screening information. These intake forms can also be an important documentation of the reason for the interview and the client’s initial expectations. However, some individuals may not fully understand all questions, may provide incomplete information, or may even resent the request for detailed information before they have had an opportunity to meet you and build some trust.

In addition to or instead of an intake form, some attorneys prefer to schedule a brief intake call with potential clients to determine whether a full interview is appropriate. Often attorneys may delegate this task to a paralegal. The advantage of this model is that it begins the potential relationship with human contact. The interviewer can explain the process to the client and start building rapport. Through these intake interviews, the interviewer can ask follow-up questions to gather more details, clarify ambiguities, or identify conflicts or other issues requiring your attention early on. This approach is expensive, however, especially if you are the one who conducts these interviews. However, even the paralegal model can be expensive. Not only does it require the time of a paralegal for these interviews, but you must provide thorough training so that the paralegal does not provide legal advice^[7] and accurately conveys information.

The availability of generative AI provides the option of using chatbots or programmed guided interviews to conduct these initial intakes. As with an intake form, clients can initiate intake conversations with a chatbot at their own convenience. A chatbot can, like a paralegal, also ask clarifying questions based on user responses using conversational AI. Carefully designed, a chatbot can provide consistent intake, so that no key information is overlooked. Such an approach might be well suited to intake in high-volume, lower complexity areas of practice. Current chatbots have limitations understanding complex legal matters and may not adequately identify conflicts or critically analyze appropriateness of representation. Potential clients may perceive these tools as impersonal and lacking human rapport. Efforts to make the chatbots appear to be interactions with living humans are misleading and therefore unethical. As with any delegation, you have the duty to ensure that the chatbot is conducting interviews in a manner that complies with the rules of professional conduct.

The ideal approach may involve a hybrid model—using pre-screening programs or chatbots to triage potential clients, intake forms to capture basic details, and paralegal/attorney interviews for matters requiring professional discretion and judgment. This leverages technology but still provides the human interaction important for complex legal intake.

Reflective Practice

As you make choices about intake procedures (that is, scheduling meetings with and gathering initial information from prospective clients), try thinking about these choices through several lenses. One lens can be your own experience. Think about times that you have had to schedule a meeting with a service provider—whether a doctor, financial aid advisor, or mechanic, and answer the following questions.

 

C. How do you screen prospective clients for factors that disqualify you from possible representation?

Identifying at the start those cases or clients that you will want to decline is an important part of preliminary intake. There are some clients that you can easily screen out based on a few simple questions in the intake process. These questions also may help you identify clients that are more likely to result in productive attorney-client relationships. Consider the following questions and their utility in conducting this screening.

1. Where is the client and the matter located?

Attorneys may not practice law in jurisdictions where they are not licensed. How do you know if you are practicing law in a jurisdiction in which you are not licensed? Unfortunately, the answer is not always clear. Despite the efforts by courts and the profession to create clarity, the law is often confusing and difficult to predict. You are at highest risk for unauthorized practice in another jurisdiction if you are:

• representing a client from another jurisdiction,
• that involves a matter that concerns events or transactions primarily located in that jurisdiction,
• before a tribunal in that jurisdiction, and
• that requires your physical presence in that jurisdiction.

Obviously, the highest risk would be if you are misrepresenting your licensure limitations.

On the other hand, if you have the court’s permission to practice in a particular case (“pro hac vice” admission) or you are providing brief and temporary services in another state in collaboration with an attorney from that state, your risk is less. Your Professional Responsibility course will provide more opportunities to gain a more nuanced understanding of this issue.

The biggest mistake you are likely to make early in your practice is not that you will knowingly push the boundaries of jurisdictional limits of your license. The more common mistake is simply not seeing the issue at all because you haven’t asked about where the client and the matter are located.

2. When does the matter require action?

Another especially important screening topic concerns timing and deadlines. For litigation matters, knowing when a cause of action arises (generally by identifying when an event occurred) is critical to deciding whether you can or will help a client. There is a great deal of risk in taking on a case that is close to the statutory limitation, as you may need to set aside other client work in order to give undivided attention to meeting that deadline. Sometimes the very reasons that a client has delayed are reasons for declining the representation. The purpose of statutes of limitations is, in part, to require that lawsuits begin while witnesses and evidence are still available and memories are fresh. Taking a case close to a filing deadline may be challenging then, with evidence more difficult to find and witnesses whose memories are less reliable. Similar considerations caution against taking cases when clients have delayed in non-litigation matters in which there are looming legal deadlines, such as filing requirements for business or investment matters. These filings often require detailed and exacting reporting that is difficult when time is short.

Some prospective clients are in a hurry for reasons apart from legal deadlines. Perhaps you’ve seen the popular saying, “Poor planning on your part does not necessitate an emergency on mine.” Before you get swept up in a client’s frantic request for immediate help, consider carefully whether you wish to and will be able to meet the expectations of these clients. While service is a core value of the profession, you are certainly not required to accept every client who comes to you for assistance.

3. What kind of matter?

Before accepting a case, assess whether the client’s legal needs match your expertise and capacity. In the language of sales, this is the process of “qualifying a lead”—evaluating potential clients to determine if they are a good fit for your firm’s services. Obtaining a brief description of the prospective client’s issue is usually sufficient for you to determine if the matter is within your field of practice.

Some people will contact an attorney just wanting some general information without a clear need for legal services. This is less common today, as more legal information is more readily available online. To meet this need, many attorneys today post short informative articles on their website. This can be an effective way to highlight your expertise and preferred areas of practice, while also expanding access to legal information. Providing this information upfront also helps to screen out those clients who have not yet decided whether they need legal services but who need some preliminary information to make that decision.

Another aspect of qualifying a prospective client is a financial determination. For certain types of practice, knowing some financial information is critical to determining whether an initial interview is warranted. For example, attorneys providing contingent fee representation will need to have some sense of the possible damages at stake to know whether a case is financially viable. For these practices, obtaining some preliminary information on likely amounts in controversy will be helpful in preliminary screening. Asking these questions in a sensitive manner is important, lest you exacerbate the public perception that attorneys are simply interested in money, rather than client service. The finances of a particular client’s case may not justify a full-service representation, but you may still want to provide a limited scope consultation to advise the client on one particular aspect of the case or provide alternative resources to assist them.

Some practice settings require more specific qualification of a prospective client. For example, attorneys working in offices funded by the Legal Services Corporation may not accept clients who do not meet certain income, citizenship, and case-type guidelines. Private firms too may have particular guidelines for screening clients.

Not all of this screening for case, client, or complexity can be conducted in an online intake or even a preliminary phone intake. Understanding the client’s issues and expectations fully will usually require a preliminary consultation. However, screening can eliminate some of those matters for which that consultation would not be an efficient or effective use of time for either the attorney or the prospective client.

4. Who is involved?

The earlier you identify a conflict of interest, the better. If possible, you should conduct a basic conflict of interest check before setting up an initial interview with a prospective client. This is the first and most crucial step in fulfilling your ongoing duty to watch for conflicts throughout the representation. If you do not discover that a current client’s interests conflict with a prospective client until after you have obtained confidential and material information from the prospective client, you may have to decline the proposed new representation and also withdraw from representing your current client as well.

What is a conflict of interest? There are two primary values that conflict of interest rules are designed to protect: loyalty and confidentiality. Your loyalty may be threatened any time that you are asked to represent someone in a matter in which the interest of any other person (a current client, former client, third person, or even you) could materially limit your ability to represent that prospective client competently or diligently. Confidentiality is threatened any time that you have confidential information from one client (whether a prospective, current, or former client) that you could use to advance contrary interests of another client. To make matters even more complicated, conflicts are imputed from one attorney to all attorneys in a firm.^[8] Thus, if another attorney in your firm has a conflict of interest that prevents them from representing a particular client, you generally cannot represent that client either.

Conflict of interest rules are detailed and complex. Your Professional Responsibility class will undoubtedly thoroughly address this doctrine. Moreover, different jurisdictions may have variations on these rules. For purposes of understanding how conflicts might arise in a preliminary interview, consider this very simplified and incomplete summary of common examples of conflicts:

• You cannot represent a client if your loyalty to anyone else (you, another client, a former client, a third person) would materially limit your ability to provide competent, candid, diligent representation.^[9]
• You cannot represent someone whose interests are adverse to a former client if the two matters are so related that you are likely to have gained relevant confidential information from the former client that you could use against them in this representation. Suppose an attorney has been in-house counsel for a company handling their employment policies and human resources matters. The attorney leaves the company and begins private practice representing employees in discrimination matters. The attorney would be unlikely to be able to represent an employee in an action against the attorney’s former company because the employee’s case would ordinarily be considered the “same or a substantially related matter” as the attorney’s work at the company. ^[10]
• You cannot give a litigation client money except to advance court costs and litigation expenses or in some limited cases to provide humanitarian assistance to a client in poverty. ^[11]
• You cannot ask the client to waive malpractice claims against you ahead of time. You cannot settle a malpractice claim with an unrepresented or former client unless the deal is reasonable, fully disclosed in writing, and you’ve advised them in writing to get an attorney and given them time to do so. ^[12]

This is just a partial list of the types of situations that can give rise to conflicts of interest. You can see why large firms often hire an attorney whose primary job is to screen new cases for these conflicts.

A common situation presenting a conflict of interest in the prospective client interview is when two individuals come to you to seek a joint representation. Perhaps they want to form a business or some other joint venture together. Perhaps they are both potential plaintiffs in a suit. Sometimes they may even be suing one another, as in a so-called “friendly divorce.”

Some of these representations are simply prohibited. For example, you cannot represent someone whose interests are directly adverse (i.e., someone who is currently suing) someone you currently represent as a client.^[13] This applies even in situations in which both parties want you to represent them. For example, in most jurisdictions an attorney cannot represent both spouses in a divorce—even a so-called “friendly divorce.” Most attorneys will agree to represent only one spouse and leave the decision up to the other spouse as to whether they wish to engage counsel or represent themselves.

Others are only sometimes prohibited but nearly always unwise. For example, you may not want to represent co-defendants in a criminal matter, because it is not unusual for these defendants to have irreconcilable views about cooperating with authorities, accepting plea agreements, testifying, or making other critical decisions. Those views sometimes do not emerge until well into the representation, when your withdrawal could significantly prejudice your clients’ interests. This is an example of a situation in which even a potential for future conflicts of interest is sufficient to warrant declining a representation.

Some joint representations are not uncommon but still require caution. For example, several individuals may seek your assistance in forming a business or making an investment. These types of potential conflicts cannot be resolved in a preliminary intake but will require a conversation with the prospective clients in a preliminary consultation.

5. Have you worked with an attorney before?

This simple question can provide you with very important information you will want to know from the beginning. Learning about a prospective client’s prior experiences with legal services can give you insights into their expectations and familiarity with the legal system. As to the particular matter, you will want to know if they have talked with other attorneys or spoken with others about the case. If the client has spoken to other attorneys on the matter, you will want to know why they chose not to work with those attorneys.

Before agreeing to a consultation, you may want to consider the reasons that a prospective client may be looking for representation despite having worked with other attorneys on the matter. Some reasons present very little risk—a prior attorney may have been disqualified for a conflict of interest or may no longer be practicing law or may have provided incompetent representation. Other reasons are more problematic. If you are one in a long line of attorneys with whom the prospective client has already met to discuss their issue, this may be a red flag for a client who has unrealistic or even unethical expectations. An attorney will want to know as soon as possible if the prospective client is one whose prior attorney has withdrawn because the client has not paid, or is difficult to work with, or demands that the attorney provide services that are unreasonable, unethical, or even illegal. Especially if the client had previously engaged an attorney on the matter, you may wish to ask for permission to speak to these attorneys.

If you are currently representing a client in a matter, you cannot speak to anyone that you know is represented by another lawyer in the same matter, unless the other lawyer consents, or the court permits the communication.^[14] This rule does not preclude your communication with a represented person who is simply seeking advice or a second opinion. Nonetheless, most attorneys are reluctant to provide these consultations. Many attorneys facing these requests for second opinions will ask the prospective client for permission to contact the first attorney to discuss the matter. This awkward situation is another reason why it is a good idea to ask a prospective client if they have spoken with others, especially other attorneys, about their matter.

Skills Practice

Review the following two client intake forms in a personal injury practice. Consider each one, and then answer the questions that follow.

INTAKE FORM #1 – WEST CASE (taken over phone by paralegal)

I. CLIENT INFORMATION

Last Name West First Name Linda

Date of Birth 2/25/1993

Address 14900 60th St #27, Our City, Our State

Home or Cell Phone number 816-123-4567 Work Phone 816-235-1000

E-mail Westreal@realmail.com Marital Status single

II. EMPLOYMENT INFORMATION

Employer Deerhorn Stables Client’s Occupation Stable Assistant

Address 8300 60th St. N, Our City, Our State

Annual Earnings: $27,000 Date Employment Commenced June 2017

No. of Hours Worked Per Day 8 No. of Days Worked Per Week 5

Supervisor Frank Fetzer

III. PARTIES/WITNESSES

Opposing party Roland South

Witnesses Tammy MacTaggart

IV. BRIEF DESCRIPTION

I was riding my horse along the road when a man came out of his house screaming, threatened to shoot me, hit my horse, and made me lose control of her, and threw rocks at me as I left. My horse can’t be shown anymore because he is head shy.

 

INTAKE FORM #2 – BROWN CASE (online form)

I. CLIENT INFORMATION

Last Name Brown First Name Barbara

Date of Birth 2/25/1952

Address 205 Park Avenue #800, Kansas City, MO

Home Phone 816-500-0001

E-mail Brownreal@realmail.com

Case type: ✓ Personal injury

Problem Description (125-character limit): I was trying to fill my prescription at Walgreens when they accused me of shoplifting which I didn’t do, and then they stole

 

6. Declining a consultation

What do you do if you have concluded that you are not interested in speaking with a prospective client? The key in these situations is to be prompt, clear, and simple. If you cannot represent a prospective client because the matter is not one within your practice area or jurisdiction, simply say so. If the reason is because of a conflict of interest, your response must be dictated by the nature of the conflict. You could say that you have identified a conflict and cannot represent the prospective client in this matter. For some sophisticated clients of large law firms, this will not necessarily be unexpected news. Beyond identifying that a conflict exists, however, you certainly should not provide details regarding your representation of another current or former client, as that would be violating your duty of confidentiality to that client. Sometimes even simply saying that you have a conflict might reveal confidential information. Suppose a client comes to you asking for assistance in filing for a divorce from their spouse. Telling that client that you have a conflict may lead the client to realize that their spouse has also consulted with the firm. Another approach is to simply indicate that you are not able to take on the client at this time.

If you could, but do not wish to, consult with or represent a prospective client, you can simply say that you are not in a position to be able to help them at this time. You needn’t give any specific reason. Be sure that you do not inadvertently suggest that they should not seek out other attorneys or that you are declining to meet with them because you have evaluated their matter as without merit. You lack sufficient information from a preliminary intake to make that determination. Moreover, communicating an opinion about the client’s matter could be deemed legal advice, creating potential malpractice liability if the advice proves faulty.

In declining a prospective client, many attorneys like to have a list of attorneys for a referral, but you need not provide such a referral. If you do, be sure to let the client know that they shouldn’t feel obligated to contact or engage the referred attorney. Some attorneys provide the number of a state or local bar association lawyer referral service. Regardless of whether you give a referral, be sure to follow up with a nonengagement letter or other written confirmation of your decision.

Whatever you do, do not come up with a sham excuse for declining the prospective client. For example, saying that you are not accepting new clients, while an easy way to decline this client, may result in your losing other clients whom you would want to represent. Remember that one of the largest sources of clients for attorneys is referral, either from clients or other attorneys. In addition, if the potential client later discovers that you are taking on new clients, they will be left to wonder why you were not more forthright with them.

Skills Practice

Suppose you are an attorney in a litigation practice specializing in bringing medical malpractice claims against negligent medical care providers. Your paralegal has conducted a preliminary intake with a prospective client asking about a suit against a doctor who treated her 94-year-old mother. The mother fell at home and fractured her hip. She was admitted to the hospital and died one week later. The daughter indicates that the mother was in failing health with several pre-existing conditions. She is unable to identify how precisely she believes the doctor was negligent. You know that the mother’s advanced age and health conditions would make establishing causation difficult and that the economic damages (such as lost wages or future earnings) would be minimal. The daughter wants you to represent her in a wrongful death action on a contingent fee basis.

How would you communicate that you do not want to meet with the daughter for an initial consultation on the case? Rate each one of the following examples as a “poor,” “neutral,”  or “good” response.

 

D. What are the advantages and disadvantages of in-person intake interviews?

The final step of preparation requires choosing the format you will use to conduct the initial interview. For an effective initial interview, you will want to choose a method that supports the client’s connection with you, permits dialogue, gives you an opportunity to monitor the client’s attention and understanding, and facilitates sharing of documents or other materials. In nearly any circumstance, an in-person meeting is best at meeting these conditions.^[15] In certain practice areas, however, the efficiencies gained from telephone or video meetings may lead the client to prefer this format.

In general, face-to-face meetings work best, especially for clients who rarely hire lawyers. In-person interaction builds trust and helps both you and the client better understand each other. Sharing physical documents or evidence is easier in person, assuming a prospective client remembers to bring these materials to the meeting. In-person meetings often best ensure privacy and confidentiality, as the conversation is not recorded or transmitted over networks and the attorney can be assured of who is present and able to hear the conversation. Finally, in-person meetings may make communication easier for individuals for whom English is not their first language or who otherwise rely heavily on nonverbal supports to understanding. In some fields of practice, such as criminal defense^[16] or guardian ad litem^[17] practice, an in-person meeting is considered essential to competent practice.

One reason that in-person meetings are superior to all other methods is the importance of nonverbal communication. The classic research regarding non-verbal communication was conducted by UCLA Psychology Professor Albert Mehrabian, who found that only seven percent of the meaning of communication is conveyed by words. The rest is nonverbal. This is especially so when words convey one message and nonverbal expressions convey another.^[18] If this seems difficult to believe, consider that tone of voice is a part of nonverbal communication. Dr. Mehrabian’s research concluded that tone of voice conveyed 38% of meaning in these circumstances. Think of the many different ways you might say “okay” in response to someone’s request and you can quickly see how nonverbal communication carries significant meaning. While remote modes of communication may permit an attorney to hear tone of voice, it omits the 55% of meaning that comes from facial expressions and body language.^[19] When you can observe your client’s body language, eye contact, and tone of voice, you can pick up important clues to their emotions, perceptions, and the reliability of their information. Of course, nonverbal communication is not precise, and you cannot form accurate judgments about someone’s feelings or forthrightness from non-verbal cues alone.^[20] Without these clues, attorneys cannot explore what the nonverbal signals might convey.

Your nonverbal communication to the client is equally important. Nonverbal signals can encourage disclosure without interrupting the client. They can signal attention, acceptance, and care as well as, if not better than, verbal assurances. Consider, for example, the difference in the meaning conveyed by an extended pause in an in-person conversation versus a phone conversation:

A sensitive interviewer will know when a long pause, even several moments of silence, would allow a witness to collect herself before continuing, communicate empathy, or signal an expectation of further information. But in a remote interview, the subject may conclude the discussion is over, or that the connection has been lost.^[21]

Remote modes limit much of the nonverbal communication provided by an in-person meeting, which can lead to misunderstandings or missed nuances. One of the most important nonverbal cues missing in these modes of communication is eye contact. Even in a video conversation, eye contact is impossible as one must choose to either look at the camera or look at the speaker.^[22]

When interpreting nonverbal communications, attorneys should be aware of differences in communication across cultures and should avoid drawing judgments about a client’s attitudes or emotions based on nonverbal communication alone.^[23] However, to conclude that nonverbal communications can be misread is not to say that they have no value.

After the pandemic, many people are familiar with video meetings. Familiarity does not necessarily mean comfort. The increasing use of video meetings during the pandemic revealed the extent to which this mode of communication also can increase anxiety for many speakers, as they are faced with watching themselves on camera. For younger clients, who may rely on chat rather than phone calls, a phone conversation can be alienating and uncomfortable. Any of these remote modes require reliable internet or cellular connectivity and compatible hardware/software for all parties. All pose the risk of technical issues disrupting the consultation.

Obviously then, a critical factor in determining the mode for meeting must be the client’s preferences. Sophisticated consumers of legal services may prefer telephone or video conferences to in-person meetings. An officer of a business may be perfectly comfortable using the phone to call an attorney from the in-house counsel office for advice or consultation. Likewise, the in-house counsel might prefer the efficiencies of remote meetings when conducting preliminary interviews to determine whether to engage outside counsel for a particular issue. Providing multiple options for meeting with prospective clients may be the best option for attorneys in many areas of practice.

For some types of practice or for some clients, the inconvenience and cost of in-person meetings can limit access to legal services and remote consultations may be an important option to consider. For example, clients who rely on specialized technology to communicate, such as captioning or text readers, may find online meetings more accessible. Many rural areas in the United States are “legal deserts” with few local attorneys who can provide a full range of legal services. Just as tele-health expands availability of health services, so too, the availability of remote methods of conducting preliminary interviews can significantly expand the availability of legal services. Low-income clients may find it difficult to arrange transportation, childcare, or time away from work for a meeting and may find a phone or video meeting more accessible.

Regardless of whether consultations are in-person or remote, the attorney must think about location. Where will the meeting take place? For in-person meetings, the attorney might consider the benefits of meeting the client away from the attorney’s office. In some fields of practice, such as a guardian ad litem’s representation of children or incapacitated adults, conducting an interview in the client’s home may be essential to getting a complete picture. In representing a business, meeting at the business headquarters or location may not only be more convenient for the client but may facilitate further investigation by having ready access to documents, witnesses, or other important information. An attorney’s willingness to “make a house call” can communicate the attorney’s responsiveness to the needs of the client. In representing persons who are incarcerated, an attorney has little choice but to visit the client in the institution where they are being held.^[24] Similarly, for remote consultations, the attorney should think about where the client will be during a phone or video call. These calls need to be in a location that provides private and clear communication. The attorney should advise the client to make their calls in a private location, without third persons who can overhear the conversation.

In limited settings, an attorney might conduct an initial consultation through email or other written communication. This has the obvious advantage of providing a written record of the communication, which can be useful for documentation and reference. It also allows both parties to carefully consider their responses and provide detailed information. It is the most flexible mode of communication as it can take place asynchronously. However, this approach is rarely effective except with sophisticated clients, often who already have a relationship with the attorney. Email is especially unsuitable for any urgent, complex, or sensitive matters that require timely response and nuanced discussion.

Ultimately, your choice of how and where you will conduct an initial meeting with a prospective client will depend on various factors, including the nature of the legal matter, the client’s preferences, the availability of resources, and your capabilities and preferences. You will need to aim to strike a balance between efficiency, privacy, and the ability to communicate effectively with your clients.

Skills Practice

Regardless of the format, preparation for the meeting requires making sure that the client knows how, when, and where the interview will take place and that they have the necessary directions and contact information. Whether you use mail, email, or text to confirm an appointment with a prospective client, think about the impact of this communication. This will be one of the first official communications you send to a prospective client. Suppose for example that you had decided to meet with the client in the prior exercise. Recall that this case involves a daughter’s interest in filing a wrongful death action after her mother’s death due to possible medical malpractice. Your intake has confirmed the client is comfortable with email communications.

Draft an email confirming your appointment with the daughter. Your email should be attentive to tone and should include whatever information you think would be particularly helpful.

After drafting your confirmatory email, evaluate your email using the following checklist:

E. How can an attorney efficiently and effectively prepare for the content of the initial meeting?

How do you prepare for a prospective client interview? At a minimum, you must identify your goals for the interview, which should help you identify the information you want to gather and the questions you should consider asking. You may also gather resources to provide the prospective client or even conduct some preliminary research. To the extent you know ahead of time the client’s general concern or issue, you can review the law and prepare a list of topics or information you may need. In doing so, however, guard against the tendency to decide too quickly that you know what the client’s issue is. Your preparation should identify “just in case” topics to explore and information to gather rather than set out a definitive path.

Checklists, forms, and systems are all tools that permit attorneys to standardize information gathering, even in an intake interview. These tools can help to ensure that you do not overlook critical information or steps in the representation. Just as checklists and routines for airline pilots have dramatically reduced accident rates in that industry, so too can these tools help you avoid critical gaps in representation.^[25] These routinizations are critical to meet the demands of today’s clients, many of whom want “better, faster, cheaper” legal services. In addition to promoting efficiency, a checklist can help you to document important aspects of the initial interview. For example, an interview checklist might document that the attorney has explained the limited nature of the prospective client relationship or the attorney’s duty of confidentiality. Generative AI can be especially useful in this pre-interview preparation. These tools can get you started on structured interview guides based on the initial intake information, with suggested questions based on the legal matter type.

You can use these checklists to help the prospective client better prepare for the initial interview as well. For example, suppose you have been contacted by an individual who has discovered a buried tank in the backyard of their residence. The tank is at least fifty years old, left over from a time when the home was heated with fuel oil. The tank contains some residual oil which is leaking into the soil. They would like your guidance regarding their legal obligations as they prepare to sell the property. You could ask the client to send or bring relevant documents, including the deed, any real estate sales disclosure forms (both from their initial purchase of the property and their contemplated sale), and any environmental testing they have done. Similarly, before meeting with a prospective client seeking advice about an employee’s misconduct, you may want to obtain a copy of the employee’s contract, the company’s employee handbook or policies, or human resources communications.

There is a difference between asking for additional information that could permit you to prepare for the interview and independently investigating your prospective client’s matter. For most clients, you should at least alert the prospective client about any additional independent fact gathering before the initial meeting. Going one step further to ask the prospective client’s permission to look at these documents in advance of the meeting will further transparency and trust. For example, an attorney being asked to represent a client in enforcing a prior judgment may want to read that court decision or order ahead of time. A public defender appointed to represent a defendant will want to review police reports and charging documents, but their client may prefer to tell his or her side of the story first.

In general, you should not try to conduct any fact investigation ahead of the interview unless you are certain you will be representing the client. Investigation before the initial interview can be time-consuming and costly, especially if the interview does not result in representation. Moreover, in some circumstances, investigating a client’s factual situation before the client has engaged your representation can be seen as taking for granted the client’s trust and invading their privacy.

The most important reason to wait until the initial meeting for fact investigation, however, is the need to avoid early judgments about the matter. The prospective client is the best source for the critical information that you need to decide on representation. Factual investigation from other sources could lead you to develop premature judgments about the prospective client’s situation. This could potentially influence your objectivity during the initial interview.

Another way to prepare for an initial interview might be to review or even research the area of law that appears relevant. For newer attorneys, this overview or review can help to build confidence and ensure that key questions aren’t overlooked. However, there are downsides to extensive preparation on the substantive law. This time is uncompensated and may turn out to be entirely wasted if the prospective client’s matter is not as it first appears, or they do not hire you. This preparation can also prime your assumptions about the nature of the client’s matter, leading to premature conclusions.

A prospective client frequently may come to an attorney’s office believing that the legal issue they are facing is X only to discover that it is in fact Y. Consider the example of the client who has come to an attorney concerned about a buried oil tank in their yard. The attorney learns from the intake that the client is in the process of preparing the house for sale. It would be natural to assume that the client’s primary concern is how the presence of this environmental hazard would affect their duties in selling the house. The attorney might spend time preparing for the initial meeting by researching the law of real estate disclosures. Suppose, however, that the prospective client’s actual concern is for their family’s health and safety. The attorney who goes into the initial interview assuming the problem is a real estate sales issue has wasted time in researching and preparing for that issue. Worse still, however, the attorney may be so sure that they understand the client’s issue that they may fail to listen to the prospective client’s real concerns, confusing or frustrating the client by focusing on the wrong target.

In sum, there is no one-size-fits-all level of preparation for all cases. You will learn to fit your preparation to your purposes. While advanced preparations are often important and helpful, the preparation you need most is to be prepared to be surprised.

Chapter Two Endnotes