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January 28, 2017 Practice Points

Client Hacks: Protecting Yourself When a Corporate Client Is Hedging Its Bets

By Florence M. Johnson

As any lawyer knows, corporate clients are occasionally reticent about the truth of a case or focused on a questionable agenda. While we can't always anticipate which clients will create a legal crisis, we can lay the groundwork to prevent one. I've been able to successfully navigate these matters for my corporate clients, but not without a few casualties along the way. Here are a few takeaways.

The Truth and Nothing But
At the very first encounter with new clients, I always insist on the whole story right away, no matter how unflattering it may be for the organization. Often what I get is one-third of the story up front, while the remainder of the picture comes into focus as discovery rolls on. The emails. The secret audiotape of a screaming supervisor. A grainy video of an out-of-control after-work party that casts doubt on your star witness' original version of events. Avoid these headaches by staying on high alert for the subtext behind your client's side of the story.

Engagement Letters
Engagement letters are more than simple contractual statements. When you explicitly define the outcome the client is hiring you to pursue, this document also serves as a critical risk management tool. Use your engagement letter or retainer agreement on each and every matter for which you are retained to work for a client. Spell out what you are expected to do, in what forum, and the amount you are to charge for the services you are providing. Revamp these documents every year, as our firm does, and tailor each to the specific client and project at hand. For more in-depth information on engagement, see ABA Model Rule 1.5: Client-Lawyer Relationship Fee.

Layers of Information
Educate yourself about the problems lawyers and clients may face at the start of the relationship. Ask your client to explain exactly what they are looking for, and ask that question at every subsequent meeting. If there are multiple corporate departments involved, you may have to talk to different actors at different levels to understand the big picture. Be aware that in labor matters, Human Resources staff may have different files than shift managers; security and surveillance teams may keep their own files; and off-site data storage facilities can yield interesting information. Don't be afraid to put on your detective hat and make inquiries. Remember, third-party requests are fair game during discovery.

Client Communication Strategy
How do you protect yourself from an angry email or the dreaded ethics complaint? Realize that there will always be clients that require more hand-holding than others. Fortunately, they're mostly recognizable from the start. Protect yourself from particularly needy or demanding clients by setting read receipts for emails, and ask the client for confirmation that correspondence was received. A lawyer's communication style with a client is equally important, as it can set the tone for a harmonious relationship. Always correspond in a timely and courteous manner, but avoid overt friendliness or chattiness. When in doubt about whether to fire off a tense email to a client, take a breath and review ABA Model Rule 1.4: Communications.

Limits of Representation
Ultimately, if a corporate client wants something that you know that you cannot do, then you cannot take the matter. If trouble arises during the case, you have to withdraw. It's as simple as that. For more information, see ABA Rule 1.16: Declining or Terminating Representation.

Florence M. Johnson is the principal attorney at Johnson and Johnson, PLLC, in Memphis, Tennessee, and the chair of the Practice Points Subcommittee for the Section of Litigation's Minority Trial Lawyer Committee.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).