Last week I answered some frequently asked questions about law practice management. In today’s post, I am addressing a few more:
Conflicts of Interest – Prospective and Declined Clients
Question
Am I required to track prospective and declined clients in my conflict of interest system?
Answer
We recommend that prospective and declined clients be included in your conflict system. For example, assume a husband comes in for a consultation because he is contemplating divorce. During the consultation, the husband discloses confidential information. The husband then decides not to proceed with the divorce, or you decline the husband as a client. Two years later, the wife comes in seeking a divorce. If you accept the wife as a client, you will have a conflict of interest. This could happen easily if you forget about the consultation with the husband and do not maintain a record of consultations in your conflict system.
Conflicts of Interest – Tracking “No Show” Lawyer Referral Clients
Question
What should I do if the bar refers a potential client to me and they are a “no show?” Or the potential client never calls? Do I still need to include the non-client in my conflict system?
Answer
A piece of advice before I answer the conflict question: If the bar refers a potential client to you and the potential client does not call, inform the bar so you can get another referral.
Now, with regard to your conflict system: You are not required to include names of potential bar referral clients who never call you. The same is true of a “no show” who fails to keep a scheduled appointment (unless you learned confidential information about the client or her matter in the course of setting up the meeting).
Regardless, tracking “no calls” and “no shows” might prove helpful:
Joe Smith is referred to you by the bar for a divorce. Joe is a “no show” for his appointment. Other than knowing the adverse party’s name (Marie Smith), you have no information about Joe’s divorce. Because Joe did not keep his appointment and you possess no confidential information about the matter, Joe may not appear in your conflict system. Time passes. Marie Smith calls. You want to represent Marie. Can you see the value of having an entry in your system documenting that Joe was a “no show” and did not keep his appointment? Joe was never your client and your entry proves it.
Or assume a slightly different scenario. Jane is referred to you by the bar. You schedule an appointment for the next day. Jane doesn’t show. Six weeks later, Jane calls again. As part of your regular conflict screening process, you run Jane through your system and see that she did not keep her last appointment. This might be useful information to have in deciding whether to schedule Jane for a second meeting.
Keeping Declined or Miscellaneous Client Records
Question
What should I do with the notes or nonengagement letters I’ve accumulated for persons who don’t become clients?
Answer
If you are paper-based
Keep a yearly declined or miscellaneous clients folder. For example: ”2011 Declined Clients.” In the folder, staple together your intake sheet, notes, a copy of your nonengagement letter, and anything else you have from your meeting with the declined client. This is cheaper than opening a file folder for everyone you meet. Paperwork pertaining to declined clients can be kept chronologically within each year’s file. Keep these records at least 10 years, as you would actual client files. (For File Retention Guidelines, visit the PLF Web site. Select Practice Aids and Forms > File Management.) Always return any original documents provided by the client and remember to add declined clients to your conflict system.
If you are paperless
Create a file folder on your computer called “Declined Clients” and create subfolders for each year. If you like, you can create further subfolders for each declined client. Otherwise, generate a PDF file for each declined client and save the PDF under the declined client’s name. In the PDF, assemble copies of your intake sheet, notes, and nonengagement letter or e-mail. Scan any paper related to the declined/miscellaneous client and append it to the PDF. Store your electronic records at least 10 years. Be sure to capture your declined client folder in your backup. Always return any original documents provided by the client and remember to add declined clients to your conflict system.
Unlawful Practice of Law
Question
What should I do if I believe someone is engaged in the unlawful practice of law?
Answer
If you believe someone is engaging in the unlawful practice of law, report it to the Oregon State Bar. A complaint form is available here. On its Web site, the Oregon State Bar provides the following information:
“The UPL committee has authority to:
- Dismiss a complaint
- Send a notice letter, warning that the accused’s activities could be considered the unlawful practice of law
- Issue an admonition with the consent of the accused
- Enter into a cease and desist agreement with the accused or
- Recommend to the OSB Board of Governors that the OSB file a lawsuit against the accused to prevent him from continuing to practice law without authorization.
Occasionally, if an investigation suggests that there has been some illegal activity that the UPL committee cannot address, then the UPL committee will forward the results of its investigation to other state bars, to the Oregon Attorney General, or to another appropriate regulatory agency.”
Copyright 2011 Beverly Michaelis
