April 26, 2017

Attorney at Work—Mixing Cocktails with Legal Advice: Don’t

Editor’s note: This article originally appeared on Attorney at Work on April 19, 2016. Reprinted with permission.

Mark3By Mark Bassingthwaighte

I can appreciate a well-crafted cocktail. But when I am in a situation where such beverages are being served, I never get involved in a conversation about someone’s legal problems. And I strongly encourage you to do the same.

Here’s a short story that explains why.

An associate at a law firm — not a litigator in any way — attended a social function and had a few more than she should have. She got involved in a conversation with another guest about a personal injury matter. In addition to sharing some generic advice, the associate also let the guest know there was still plenty of time to deal with the matter, saying the statute of limitations in that jurisdiction was two years. Unfortunately, unbeknownst to our heroine, there was an exception to the statute in play and the actual time to file suit was six months. The guest, relying on the advice, did not obtain legal counsel until after the filing deadline had passed.

The young lawyer and her firm were eventually sued for malpractice.

The Accidental Client

We all know drinking and driving can have serious consequences — when your judgment and reflexes are impaired, accidents can happen. Mixing cocktails and legal advice is similarly problematic. It’s too easy for a casual setting, coupled with a few adult beverages, to cloud your thinking. You may then find yourself dealing with an accidental client.

Malpractice claims can easily arise out of these situations, but the risk isn’t limited to cocktail parties. Casual conversations online with extended family members or friends and gatherings with members of your church congregation or other community organizations are all situations where you should proceed with caution.

You can’t overlook the office setting, either.

Should you be concerned about passing along a little casual advice in a conversation with a corporate constituent while representing the entity itself? How about discussing issues with beneficiaries while representing the estate, trying to help a prospective client out during that first meeting when you know you are going to decline the representation? Or what about being a good Samaritan by making a few suggestions on the phone to someone who clearly has a problem but really can’t afford an attorney? How about answering a few questions from an unrepresented third party?

The answer is, of course, yes — these are all situations that can easily lead to an accidental client.

“No Good Deed Goes Unpunished”

Old sayings became old sayings because they have a ring of truth to them.

I am always surprised by what attorneys say when they have to deal with a claim brought by an accidental client. Comments like “I never intended to create an attorney-client relationship,” “There was no signed fee agreement,” and “No money was exchanged so how could this be?” are common.

Guess what: It’s not about you! Typically, it is more about how the individual you interacted with responded to the exchange. If they happened to respond as if they were receiving a little legal advice from an attorney, and that response was reasonable under the circumstances, it can start to get muddy. Worse yet, if it was reasonably foreseeable that this individual would rely or act on your casual advice — and then, in fact, did so to their detriment — you may have a serious problem on your hands.

I share this not with a desire to convince you to keep quiet and never try to help someone. By all means, be helpful. The world could use a few more good Samaritans, and a desire to help others is a good thing as long as you stay the course. I share this because I want you to be cognizant of the risk involved whenever you decide to step into those waters.

Here’s the Bottom Line

Accidental clients are for real and there is no such thing as “legal lite.” So if you are enjoying a wonderful evening at a party, cocktail in hand, and find yourself conversing with another guest who has just learned you are an attorney and wants to “pick your brain,” don’t talk about legal issues you are not well-versed in. If you feel compelled to pass along a little advice, then remember to ask questions so you understand the entire situation. Just know that you may be held to the accuracy of that advice later on, so you might want to jot down a few notes as soon as you can.

Finally, know that it’s okay to say you’re not the right person to be asking, particularly after you’ve had a few.

That said, salute!

Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier, since 1998. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1150 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology.  Mr. Bassingthwaighte is a member of the ABA and currently sits on the ABA’s Law Practice Division’s Professional Development Board, the Division’s Ethics and Professionalism Committee, and he serves as the Division’s Liaison to the ABA’s Standing Committee on Lawyers Professional Liability. Mr. Bassingthwaighte received his J.D. from Drake University Law School and his undergraduate degree from Gettysburg College.

Contact Information:
Mark Bassingthwaighte, Esq.
ALPS Property & Casualty Insurance Company
Risk Manager
PO Box 9169 | Missoula, Montana 59807
(T) 406.728.3113 | (Toll Free) 800.367.2577 | (F) 406.728.7416
mbass@alpsnet.com | www.alpsnet.com

ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado

ALPS 411: I Believe First Impressions Matter. Do You?

Editor’s Note: This post originally appeared on the ALPS 411 blog on January 13, 2015. Reprinted with permission.

Mark3By Mark Bassingthwaighte

Like you, I’ve been a consumer for years and the older I get the more I’ve come to recognize the impact of first impressions. They really do matter. I can only speak for me, but these days if I am forced to interact with a pushy sales person when first entering a store, I often leave and rarely return. If I’m shopping online and a website fails to load properly because it’s outdated or it’s simply hard to navigate, I’m gone. If a grocery store is unclean, I will walk out and shop elsewhere. Heck, everyone knows that you can judge the quality of the food an unfamiliar restaurant serves by the number and types of vehicles in the parking lot, don’t they? First impressions matter and I don’t think I’m alone in believing this. If you agree, I would ask if you’ve taken steps to set the right impression at your own firm because it’s certainly going to be easier to establish and maintain an effective and trusting attorney client relationship if a potential new client’s first impression is a positive one.

Consider this. I have walked into more than a firm or two for the first time where I was placed in an unkempt reception area or an absolutely cluttered and dirty conference room featuring broken furniture. Some of these spaces looked more like old storage rooms than the client areas that they were. I have also been kept waiting for 30 to 60 minutes past my appointment time without explanation and on several occasions even forgotten about entirely. I have been the recipient of cold greetings by staff and treated by reception as if I was a bother. Such experiences can’t help but result in setting an impression. That’s normal. Now put yourself in my shoes. What might your response to any of the above experiences have been? If your own clients were to have a similar experience, what might their response be? I can share my initial response was to begin to question the business and even legal acumen of the attorneys who practiced there. Certainly my initial opinions were open to being changed, but it was now going to be an uphill climb.

First impressions are made at first contact, be it calling for an appointment, looking you up on the Internet, or walking through your front door. They are often set before you even have a chance to meet with a prospective new client. It’s all about presentation and experience. Is there a welcoming greeting? Is the space tidy and inviting? Is your website user friendly and functional on multiple platforms to include mobile devices? With all this in mind, I offer the following as ideas to help get you started in thinking about what you can do to try and make certain the right impression is set at first contact.

  • Train staff to greet every individual as soon as possible, certainly within a minute of their entering the office, and remember that even a sales representative who is turned away today may be a prospective client tomorrow. If your receptionist happens to be helping someone else, have them give a simple “Hello, I will be with you in a moment” in order to acknowledge the individual’s presence.
  • Never allow confidential or personal conversations to be overheard by others, particularly in the reception area. If conversations from an employee break area, a conference room, or attorney offices can be heard in reception consider some type of sound proofing. Periodically remind staff and attorneys that confidential or personal matters should never be discussed within earshot of any visitors. In fact, give staff permission to briefly interrupt a client meeting to perhaps shut a door if voices can be overheard in reception or by visitors elsewhere in the office.
  • Do not allow visitors to view computer screens. The receptionist’s computer screen will often have confidential information on it and thus should never be visible to anyone coming into the office.
  • Occasionally check the waiting area during the day. This is an especially good customer service technique. If anyone sitting there seems bored or frustrated and have been in the reception area less than ten minutes, there’s a problem. The space should be designed to make the wait as pleasant as possible. Remember they don’t like having to wait for you any more than you would like having to wait for them if you were in their office. You might even go sit in your own reception area for 10 or 15 minutes just to see how it feels. For example, does the reading material provided fit the clientele? While Scientific American is probably a great choice for an intellectual property practice, it won’t win any points from clients in a family law practice. If families use your waiting area, make sure there are materials suitable for children. All magazines and newspapers should be current as opposed to displaying outdated ones that have a home address label still attached.
  • Keep the reception area clean and orderly because an unkempt reception area is too easily seen as a reflection of the quality of service offered by the firm. Before the attorney-client relationship has even started, a potential new client may already begin to question whether the attorney has enough time to appropriately deal with their matter simply because it appears the attorney already doesn’t have enough time to pick up the place.
  • In a similar vein, do not minimize the importance of appropriate attire. Staff and attorneys alike need to dress the part whenever meeting potential new clients. This isn’t to suggest that casual Fridays and the like are inappropriate. Just be mindful that people will make initial judgments about someone they are meeting for the first time based upon overall appearance. I can share that I have actually walked into a law firm where I was given a nod by the receptionist who was dressed down, reading a romance novel, and chewing gum with her feet on the desk. Suffice it to say, my initial thought was I would never hire anyone in this firm because tolerance for the sloppy appearance suggests a tolerance for sloppy work. The message was they didn’t care.
  • Client information and documents must be kept confidential at all times. If client file material needs to be in the reception area in order for the receptionist to do his work, make sure that wandering eyes can never land on those materials. Never leave client file material, mail, or anything else that might identify a client on the counter or privacy wall around the reception desk.
  • Try to prevent anyone from having to wait longer than ten minutes. Most people are willing to be reasonable and wait a short amount of time for the right lawyer; but don’t expect them to wait as long for their lawyer as they might for their doctor. While medical emergencies do arise, lawyers can rarely claim a legal emergency. If prospective clients are waiting too long, consider altering your scheduling procedures. If a delay is unavoidable, have staff inform them of the delay as quickly as possible and discuss options. Some will wait and others will need to reschedule.
  • Be mindful of the difficulties the receptionist faces when assigned phone answering duties. Confidentiality can easily be breached in a law office when someone in the reception area overhears a phone conversation or a client name.  The receptionist should have a way of notifying attorneys that someone has arrived or that a client is on the phone without being forced to breach client confidentiality. Statements like “Your two o’clock appointment is here” or “you have a call on line one” as opposed to “John Smith is here and he wants to talk with you about getting a divorce” should be acceptable when necessary. Viable alternatives might include the use of privacy glass, email notifications of a waiting call, or the moving of phone answering responsibilities away from the reception area.
  • If your space permits, have visitor areas and work areas separated by a wall or partition. One never knows what impression potential new clients may have when they observe people working. Some may feel they are seeing energetic and busy staff members and take that as a positive sign while others may feel the staff is overworked or unprofessional and conclude the opposite. A wall with a tasteful picture or two is worth the investment. In fact, some firms place all conference room areas near reception and away from work areas for this very reason.
  • Finally, don’t overlook your Web presence. A poorly designed website, a website that doesn’t display properly on a mobile device, or a website that isn’t kept current can send a message about your competency and priorities as well. After all, who wants their lawyer to be someone who appears to think halfway is good enough or perhaps got started on something and then neglected to follow through?

As I shared above, all of this is about presentation and experience. At first contact if your presentation is poor and/or the experience of any potential client is bad, then you’re going to start off on the wrong foot if they even decide to let you get started at all. Do first impressions matter? You bet they do.

Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier, since 1998. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1100 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology.  Mr. Bassingthwaighte received his J.D. from Drake University Law School and his undergraduate degree from Gettysburg College.

Contact Information:
Mark Bassingthwaighte, Esq.
ALPS Property & Casualty Insurance Company
Risk Manager
PO Box 9169 | Missoula, Montana 59807
(T) 406.728.3113 | (Toll Free) 800.367.2577 | (F) 406.728.7416
mbass@alpsnet.com | www.alpsnet.com

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.