Chapter Nine – Closing the Interview

Learning Objectives

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

• Decide whether to represent a prospective client.
• Help a prospective client decide whether your legal representation is a good investment for them.
• Make clear to the prospective client the status of the relationship at the close of the interview.
• Provide appropriate follow-up.

As we learned at the beginning of this book, the decision to represent a client is easily one of the most important ethical choices an attorney makes. Apart from instances in which you are appointed to representation, you are generally free to reject potential clients for any reason at all. Likewise for the prospective client, the decision to engage an attorney is a significant investment of time, resources, and privacy. As an initial interview comes to a close, you and the prospective client must each determine whether you will continue to work together.

There are multiple possible outcomes from the initial consultation. You may decide not to offer to represent the client. Either you may have decided that you don’t want to represent the client at all or you may be undecided and need to defer the offer to represent the client until you have more information. Similarly, while you may be willing to represent the prospective client, they may not be interested or may need more time or information before agreeing. Finally, both the client and you may agree to further representation. No attorney should ever close an initial interview without making it very clear whether an attorney-client relationship has been formed and what that decision means for next steps for both attorney and client.

A. How do you decide on representation?

When you have reached the point at which the prospective client has no further pertinent information or questions, you are ready for the conclusion of the interview. By this point, you need to not only have gathered the information relevant to the prospective client’s situation, but also to have processed and analyzed the information. You will need to place the client’s matter in the context of the preexisting demands of your professional and personal life.

The following decision-matrix fleshes out one way of thinking through the decision about whether it makes sense for both attorney and client to proceed to an attorney-client relationship:

Notably, the top half of the Decision-Matrix Chart focuses on information gathered during the initial interview and on the client’s decision to engage your services. In all likelihood, helping the client through this decision will require a discussion about the “costs” or “risks” associated with the representation. These include the direct costs associated with the attorney’s time or fee arrangement, as well as the “costs” or “expenses” for which the client will be responsible. There are also indirect “costs”—the time involved in continuing to pursue the claim or transaction, the anxiety involved in monitoring the progress of the matter and dealing with depositions or requests for information (or learning about other information that alters the “calculus”), the emotional energy involved in dealing with the lack of “closure” regarding an event, etc.

In these latter scenarios, you should initiate a discussion with the prospective client about these direct and indirect costs. The discussion should encompass a dialogue about your preferred fee arrangement (and alternatives if necessary) as well as some of the indirect or intangible costs: How long might it take to bring the case to resolution? How much of the prospective client’s time might need to be invested in bringing the case to fruition? How might the process unfold in a way that has an emotional or psychological toll on the prospective client over time? During the course of the discussion, you and the prospective client are essentially exploring whether there is a mutually beneficial investment opportunity—an opportunity in which each of you sees value in a decision to invest your resources (time, energy, finances) in pursuing an attorney-client relationship.

If you know that the representation will be unlikely to return value, you must then take steps to make it clear that you will not represent the client. If you are open to offering to represent the client but need more time or information, you have the responsibility to be sure that the client understands how and when that “Maybe” can or will become a “Yes” or “No.” Likewise if a client has decided against representation, you still have an obligation to make it clear what that means in terms of any future representation. If the client needs more time for the decision, again, you must make it clear that no relationship exists unless and until the client takes the necessary steps to accept your offer of assistance. If an investment in the representation makes sense for both you and the prospective client, you can proceed to discuss the scope and details of that relationship.

The bottom half of the Decision-Matrix Chart focuses on information you should bring to the interview. Once again, this highlights the importance of your reflection on a variety of aspects of your life and practice. You need to be aware of your professional commitments to other clients and the time and financial commitment and emotional energy involved in your existing obligations. You also need to be aware of your personal life and the demands of family, friends, civic or public service commitments, etc., that also require a commitment of time and emotional energy by you. If you are not cognizant of the extent to which your professional and personal life already are fully committed, or overcommitted, you likely will pay a significant price for making decisions that only make life worse.

As the ability to gather and analyze data increases with artificial intelligence, you will be able to refine this decision matrix by using both client data and public data from similar cases to inform your decisions about whom you will represent. For example, AI can perform more comprehensive conflict checks across vast databases of past and current clients, transactions, and related parties than manual methods. For litigation matters, particularly in contingent fee representation, AI systems can analyze similar past cases to predict the likelihood of success based on case facts, jurisdiction, judge history, and precedents, helping you make more informed decisions about case viability. On the resources side of the equation, AI can estimate the time, staffing, and costs required for different case types by analyzing historical firm data, allowing you to better evaluate if you have adequate resources for proper representation. This same analysis can permit fee arrangement optimization, suggesting optimal fee structures based on case complexity, projected duration, and likelihood of outcomes. While AI is already routinely used for document review in ongoing representation, in some instances this type of documentation analysis might be relevant to screen for issues that might impact representation decisions.

More controversial uses of AI would be those that would perform more personal analyses of clients. AI tools could perform far more extensive investigation into prospective clients, screening these potential clients against databases to identify litigation history, credit issues, or other risk factors that might affect payment or representation challenges. AI could even analyze initial client communications for indicators of potential client behaviors or expectations that might create challenges during representation. One of the ongoing concerns about AI is the embedded stereotypes and biases that exist in any tool drawing from the internet as a whole. Attorneys must always take care that their use of any tool—whether a decision matrix or an AI program—does not undermine or cloud the attorney’s ethical responsibilities to their clients, the public, and the system of justice.

B. What should happen if you decline further representation?

Throughout the text, we’ve emphasized nonjudgmental acceptance when understanding client situations. When we turn to counseling, however, that acceptance of the dignity and autonomy of the client as an individual must be balanced with the duty to provide independent professional judgment. Nowhere is this more important than when you find a prospective client’s objectives repugnant or when they seek assistance in furthering a crime or fraud. In these cases, you have the right to refuse the matter and the duty to avoid assisting in wrongdoing. If a prospective client seeks an illegal or unethical outcome or proposes an improper approach, your counseling may simply consist of declining the representation clearly and firmly.

How do you do so? Consider the attorneys in an investigation by the organization Global Witness.^[1] An investigator, posing as an adviser to a foreign government official, met with thirteen law firms. The investigator asked the lawyers how to anonymously move large sums of money that should have raised suspicions of corruption. None of the law firms agreed to represent the investigator as a client but all but one provided some preliminary information and advice. One attorney, Jeffrey M. Herrmann, after listening to the investigator’s request for assistance, declined the client in the initial interview. Here’s how he responded:

JMH: This ain’t for me. My standards are higher.

Investigator: Well that’s fair enough. That’s good.

JMH: Pardon?

Investigator: Therefore I said we have to be very frank.

JMH: Yeah, right. I’m not interested.

Investigator: Do you know anyone who would be able to do so?

JMH: I don’t think so and I would not recommend it either. Because those persons would be insulted.^[2]

Reflective Practice

What do you think of Mr. Herrmann’s response? Would you be comfortable being this blunt?

Of course, you may decide not to represent someone even when the representation is otherwise permissible. You may have concluded that the client doesn’t have a strong claim or that you don’t have the time or expertise to competently represent the client. You may simply not want to work with this particular client or pursue this particular matter. Attorneys are never required to accept a representation, so you need not have a particularly clear reason for declining a client.

When declining an individual who has sought your advice or representation, make the fact of your non-engagement crystal clear. Tell the client in clear and explicit language that you will not be representing them going forward. You need not give a reason, but if you do, take care that the reason for declining the case is not in itself legal advice. For example, it might be perfectly appropriate to say, “given our current caseload and resources, we do not believe we will be able to give your case the time and attention it deserves” but it would be unwise to say “I really think you don’t have a winning case here; I’m sorry but I will be unable to represent you.” Avoid evaluating the individual’s case on its merits, value, or appropriateness for legal resolution.

A client may ask for a referral. You can provide one if you feel comfortable recommending the client to a particular attorney (or, better yet, more than one attorney). Include a caution that the client should determine their own compatibility with the attorney. Consider directing clients to state or local bar association referral services. If you have any concerns about making a referral, do not feel pressured to do so.

Whether you make a referral or not, be sure to remind clients who are considering other representation to act promptly, as delays may foreclose legal rights and opportunities. Advise the client that statutes of limitation do or may apply, but do not give any specifics as to what those time limitations are (for that, again, would be providing legal advice). Rather, simply emphasize the need to contact another lawyer immediately.

Finally, send a non-engagement letter. Examples of these letters are readily available from bar associations or malpractice insurers, but all have the same basic elements. Repeat the clear and explicit message that you are declining the representation. For purposes of avoiding any claims of conflict of interest at a later time, you may wish to summarize the steps you took to review the case, especially emphasizing the degree to which you reviewed (or avoided receiving) certain confidential documents or discussed private information. In this summary, be sure to again make clear that the individual should not expect that you will be providing any further information or assistance to them. Finally, reiterate your suggestion that the client should not delay if they are interested in finding another attorney. In some circumstances, you may want to consider sending the non-engagement letter by certified mail, return receipt requested. In any case, be sure to keep a copy of the letter and the date sent.

Sometimes, you don’t want to decline the client but you need additional time or information before you can engage them. If the client wants to engage you, but you need to defer that agreement pending other decisions, you should recognize that you have agreed to a very limited duty going forward. There may be times, particularly early in the career of an attorney, when you may not have a sufficient grasp of the nuances of a given area of law to make an informed assessment of the existence or value of a claim. Alternatively, there may be key facts that you need to consider before you can commit to the client.

For example, you might say to a client, “I think there is a possible claim here, but I would like to do some more research to make sure I am assessing the possibility in light of the most current state of the law” or “I would be interested in helping you with this deal but I need to have some more details about the financing to determine if we are really the best fit for you.” This is a little like taking a time out—putting further discussion about the possible attorney-client relationship on hold until the attorney has done more research.

Recognize that in these circumstances, you have agreed to a limited duty to the prospective client: that is, you have agreed to review those documents, do that research, and communicate your decision to the client. Make it clear to your client the limit of this duty—that you will take no other steps to advance the client’s interest beyond this limited review. Let the client know if you will charge them for this assessment. You should set a clear deadline by which you will make this decision and communicate it to the client. Especially if the matter is one for which time limitations apply, emphasize that the client should feel free to explore engaging other attorneys while you conduct this review.

When you can’t assess the viability of a matter because of insufficient information from the prospective client, then the interview should conclude with a clear set of understandings. Identify specifically what information you need from the client and why. Be sure the client knows when and how to provide that information to you. Perhaps most importantly, make it very clear who will communicate with whom next and what you will or will not do in the meantime. Emphasize that you have no duties to the client unless and until they provide the information. Let them know that, even if they provide the necessary information, this will only permit you to continue the discussion about whether your representation is the best choice for them. This structured conclusion establishes clear expectations, maintains professional boundaries, and creates accountability for both parties while preserving the possibility of representation once sufficient information is available.

Finally, document these messages with a follow-up letter and a calendar deadline. If your additional research indicates that you should decline the client, proceed to do so clearly and explicitly. If you have determined that you do wish to engage the client, extend your offer of representation and determine whether they wish to accept that offer. Do not let these “maybe” client situations linger in ambiguity.

Skills and Reflective Practice

With a partner, practice declining a client in an initial client interview. Take turns acting as a client presenting representations that an attorney should decline (e.g., a case too complex, too rushed, or too frivolous; a client too impecunious, too rude, or too devious). After you have each had a turn at declining a representation, write a short reflection on your experience in both roles by answering the following questions.

C. What should happen if the client declines to engage you?

Sometimes you offer to represent a prospective client but they are not interested in engaging you. Once a client communicates this choice, you should make it clear that you respect their right to make that decision, even if you think it unwise or unfair. Your professional reputation is built on these interactions just as much as the work you do on behalf of clients you do represent. Don’t argue or try to change the prospective client’s mind; rather, thank them for considering your services and maintain a courteous demeanor.

A prospective client may not be able to afford your representation and they may want to “shop around” for a lower-cost option. You can help them with this decision by providing referrals for lower-cost or pro bono legal services if you know of viable options. If you provide unbundled legal services, you can offer these options as well if the situation is appropriate for limited scope representation.

Other prospective clients may have decided that the matter is one they can handle themselves. If you agree with that assessment, you can point them to self-help resources. Here, too, you can offer limited-scope assistance if appropriate to the matter. Clients who attempt to represent themselves may return to ask for help at a later stage in their matter. Stepping in to take on (and perhaps clean up) a self-represented individual’s planning, negotiation, or litigation can often be more complicated and costly than if the client had simply hired you in the first place. If you are concerned that the client may perceive you as “on call” make it clear that you can make no promises now that you will be available to them at a later stage in their legal matter. Conversely, if you wish to encourage the client to return to you for additional assistance with the matter, let the client know whether and how they can revisit the question of securing your representation.

Sometimes the client has not expressly declined your offer to represent them but simply needs time to decide whether to engage you. This results in a “maybe” conclusion which recognizes that the client has just learned a great deal of new information and needs time to process. In this situation, the actual conclusion of the interview probably involves the prospective client saying, “I need some time to think about this. I will get back to you in a few days (or in a week).” There is nothing inherently wrong with a “maybe” conclusion to an interview.

Sometimes the “maybe” is simply a matter of giving the client time to review the representation agreement. Remember that an attorney-client relationship can be formed even if there is not a signed representation agreement. If you do not want to take on a representation without an express written agreement, make that clear to the client. In that case, tell the client “Please take this with you. Read it over and think about it. If you decide that you do want us to represent you, sign it and return it to me.”

These situations of uncertainty as to future representations are fertile grounds for malpractice, so you must be especially clear and explicit with the prospective client. If you are willing to engage the client but the client wants time to make their decision, make it very clear what steps the client needs to take to engage your representation. Emphasize that you have no duty to the client unless and until they take those steps, whether that is a second meeting, a signed engagement contract, a fee deposit, or other steps. Provide some outside limits for your offer to represent. You certainly don’t want to have a client send a signed representation agreement to you months after an initial meeting and thereby create your duties when you have perhaps already determined that you will distribute your workload in a way that makes no room for the client’s representation.

Whether the prospective client has expressly declined to hire you or has left with the possibility of returning, documenting your nonengagement is critical. Create a reminder for yourself to send out a letter to the prospective client sometime in the next two to three weeks memorializing the fact that there is not an attorney-client relationship. Many of the same points that apply when the attorney declines a client apply to these nonengagement letters. You must emphasize the importance of timely action and should avoid giving specific legal advice about the client’s situation.

If the prospective client has decided not to proceed with representation, this letter simply confirms this. If the prospective client was thinking that he did want the attorney to represent him, this correspondence should trigger a response from them so that the client and attorney can “close the loop” on the question of representation.

D. How do you properly engage a client for further representation?

How do you go about establishing an attorney-client relationship with those clients whom you do want to represent and who want you to represent them? The answer is quite simple: you expressly agree to do so, or you simply begin to represent the client.

Some attorneys mistakenly believe that, unless a client has signed a representation agreement and paid an advance on fees, the attorney has no duty to that individual. The rules of professional conduct in most states do encourage and, in some instances require, that the attorney have a written agreement.^[3] However, just because the client has not signed an agreement does not mean that there is no attorney-client relationship. Likewise, an attorney-client relationship does not depend on the client having agreed to pay or having provided an advanced payment of fees.

So, while it is very useful and important to use written representation agreements, be sure that your communication with potential clients is consistent. If you will not represent clients until they have signed a representation agreement (and perhaps paid an advance on your fees), be sure you clearly communicate that to them, lest they leave your office believing that you are representing them.

As with any other critical decision your client makes, you do not want to rely on paper alone to communicate this agreement. Discuss with your client the essentials of the representation agreement and invite questions. Give the client time to read and understand the agreement.

One essential is the financial aspect of the representation—the fee arrangement, the direct costs and expenses, and the indirect costs. Clients should understand how you will be communicating your bill and how they will pay.

A second essential discussion the attorney and the prospective client need to engage in is the scope of representation. The prospective client’s situation may involve one common set of facts with multiple claims in which the attorney is prepared to represent the client with respect to all these claims. The situation, however, may involve multiple possible claims against multiple parties. Perhaps the prospective client has a workers’ comp claim, with respect to which the attorney is prepared to represent the prospective client, but the attorney is not interested in (and is not intending to agree to) representing him with respect to related common law claims. Perhaps the prospective client has a criminal charge brought against her with respect to which the attorney is prepared to provide a criminal defense representation, but there are related civil claims with respect to which the attorney will not provide representation. Perhaps the attorney and client have discussed a limited duration for the representation in which the attorney will represent the client in settlement discussions but is not committing to represent the client with respect to litigation if the settlement discussions do not lead to a resolution of the dispute. These are examples of issues that need to be discussed as the attorney and prospective client each assess whether to make an investment in an attorney-client relationship and how much to invest in the attorney-client relationship.

The client needs to understand exactly what you will and will not be doing for them. Clear definitions of the scope of representation are important for several reasons. First, a clear scope of representation will set a client’s expectations. “One of the major sources of disagreements between lawyers and clients is the issue of scope creep. Be extremely clear about the scope of work to be performed for the client and the fees for that work. Incorporate the scope of work and any variables that might change the scope of work into your engagement agreement.”^[4] If a client sues you, your duties will be defined by your agreement with the client. If you have not made clear when your representation has ended, you may have unintentionally created an ongoing duty to a client. If you have not clearly defined what the client can expect and, perhaps more importantly, what they cannot expect, the scope of your duty will depend on your client’s word against yours.

A clear scope of representation will be critical for future representation of other clients as well. In a conflict-of-interest analysis, you will need to determine whether your former client’s matter is the “same or substantially related” to a new prospective client’s matter.^[5] The scope of representation outlined in your agreement with that former client will be the best and clearest evidence of what that former “matter” entailed.

There is rarely a representation in which you will not want to set some outer boundaries of the scope of your representation. For example, it is not uncommon for an attorney to agree to represent a client at trial but not on appeal, or to form a business but not pursue litigation arising out of that business formation. In some practices, attorneys will provide even more limited scope representation—agreeing to draft a petition but not represent the client in the subsequent litigation, for example, or provide a preliminary review of intellectual property rights in a business agreement but not conduct a complete patent search.

Especially for clients with limited means, this limited scope representation, also known as “unbundled legal services,” can provide critical assistance that allows pro se litigants to access the justice system. These limited scope agreements also can encourage attorneys to provide pro bono or low-bono assistance to these clients. A 2009 ABA study found “giving the attorney the ability to define the scope of the engagement (was one of) … the most powerful incentives to encourage greater pro bono activity.”^[6]  To so limit a representation requires the informed consent of the client. In no case can a client give up the right to discharge the attorney, the right to competent representation, the right to reasonable diligence and promptness, or the ultimate right to settle or terminate the representation or the litigation.

In addition to defining the scope of the representation, be sure that your client understands the roles and responsibilities each of you have in the relationship. With respect to what decisions will you definitely be consulting the client? With respect to what other decisions does the client want to have a voice? Clients need to understand their own responsibilities—what information will you require? What behaviors should they avoid (discussing your advice with others, taking certain actions without consulting with you beforehand, etc.)?

Establishing protocols for the communication patterns of the relationship right from the beginning is essential. Make sure the client knows the who, when, how, and how often of future communication. Whatever protocols you establish, be sure you follow through. If you cannot be sure to return all calls within 24 hours, don’t promise that you will do so. Be sure you both know what kinds of communication the client does not want you to use (leaving voice mail, using email, etc.).

While rules of professional conduct do provide broad rules regarding allocation of authority, relying on these default rules is not as effective as discussing and agreeing upon these issues from the start of the representation. So, for example, you may wish to have the client agree that you have the authority to determine scheduling, lest an angry client view your agreement to a continuance as an act of disloyalty.^[7] Similarly, you may wish to explain your standards for interaction with opposing parties or counsel, or your personal limits on using particular tactics. In representing parents in divorce, for example, attorneys will often discuss their refusal to assist their clients to use children as a bargaining chip for financial advantage.

If the attorney and client have agreed that the investment in an attorney-client relationship makes sense for each of them, this understanding should be memorialized in a “representation agreement.” This is generally a one- or two-page document that represents the “contractual understanding” of the parties as they enter into the attorney-client relationship, and includes the specific scope of representation, fee structure, and cost reimbursement structure on which they have agreed.

Ideally, this is a document that the attorney takes the client through on a line-by-line basis, reading the language of the agreement and answering any questions the client may have regarding specific language in the agreement. For those interested in avoiding any concern about duress, or the perception that a client was pressured into signing an agreement, it may make sense to read through the representation agreement with the client and then ask the client to leave the office and think about it on her own, sign it on her own (if she is still so inclined) and then return it to the attorney. When this is done, however, the attorney also should make it clear that unless and until the representation agreement is signed and returned to the attorney, the attorney and client do not have an attorney-client relationship. (In this regard, see the discussion below regarding what happens with a “maybe” scenario.)

In sum, the conversation in closing an interview that will result in ongoing representation involves multiple decision points. You need to make room for this conversation, document the key aspects of these agreements, and then carefully conform your practice to the agreement. Make the next steps clear for your client. Provide timelines, make appointments, and allocate responsibilities so that the client knows exactly what to expect next in the representation.

After an initial interview, an attorney has several follow-up responsibilities. These include documentation, calendaring, and reflection.

As you have seen, documentation of the interview is a critical step to follow up on all interviews. One key document that you should always produce after an initial interview is a memo to the file, documenting the key information from the interview. In some cases, your interview notes on the initial intake form may be sufficient for these purposes. In other instances, especially if you have agreed to represent the prospective client, you may need to document more extensively the information you have received. In most instances, a letter to the prospective client is also wise, such as either a non-engagement letter (with or without an invitation to future representation) or an engagement letter.

Along with this documentation, if the attorney has undertaken a representation, the attorney must take other steps to open the client file and begin the case management process. One of the most critical steps in that process is identifying deadlines and entering those deadlines into a tickler system.

A less common follow-up task that new attorneys in particular should consider is engaging in reflection. Skills like client interviewing do not improve simply because you have a lot of practice. Only practice coupled with reflection and correction improves skills. I can swing a bat at a baseball all day long and still keep striking out if I do not take the time to think about (or be coached on) my skills at stance, attention, follow-through, and the like. Indeed, if I practice continually without reflection and correction, I will simply hard-wire bad habits that will make it even more difficult to improve in the future.

Often the most useful way to incorporate regular reflection into your professional development is through reflective writing. Because writing engages your thoughts in a different (and sometimes deeper) manner than just thinking about a topic, a journal or log can be an important tool to improving your professionalism. However, reflection can be simply taking some time to think about an interview or talking with others (while respecting confidentiality). Through reflection, you can observe your behaviors and then consider the reasons driving those behaviors. You can consider whether your behavior aligns with your values and philosophy. You can reflect on your client or their matter.

One of the cautions in any documentation, but especially in converting notes or reflections into a file, is the requirement that the client owns their entire file. The definition of what constitutes the “file” is not entirely clear in all jurisdictions. The Restatement characterizes the majority approach as requiring that the attorney turn over to a client or former client “such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former client reasonably needs.”^[8]

The Restatement notes that most courts do recognize limited exceptions to the rule that the entire file belongs to the client. For example, in a frequently cited opinion, the New York court recognized the need for some privacy for an attorney’s reflection:

The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved. This might include, for example, documents containing a firm attorney’s general or other assessment of the client, or tentative preliminary impressions of the legal or factual issues presented in the representation, recorded primarily for the purpose of giving internal direction to facilitate performance of the legal services entailed in that representation. Such documents presumably are unlikely to be of any significant usefulness to the client or to a successor attorney.^[9]

Nonetheless, attorneys should exercise judgment about how to engage in reflection. While some reflections may be better in silent contemplation rather than in writing, cultivating a deliberate practice of evaluating your own decisions and actions is the key to your growth as an attorney.

Chapter Nine Endnotes