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Practice Management

What Is a Client?

Karen Emily Clevering, Hamid Piroozi, Sheena R Hamilton, Keith Black, Logan Murphy, Aja Brooks, Mathew Kerbis, Syeda Farhana Davidson, Erin Rhinehart, Lisa Kiran Kothari, and Carolyn Tan

What Is a Client?
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Clients come in all forms and sizes. A client may be an entity, an individual, or a group of entities or individuals. The attorney’s representation of the client is often equally complex, and numerous considerations govern an effective representation. In all cases, the lawyer’s duty is to his or her client. The following anecdotes from newly minted attorneys in various attorney-client relationships demonstrate the vast diversity of clients we are often called upon to represent.

The Government Client

“The state is the state is the state, got it?” “Got it!” I said, during my first few weeks on the job with the Oregon Department of Justice. As one of the many assistant attorneys general representing the state, I represent several different client agencies; my agencies call with questions about contracts, prospective agency decisions, and whatnot. But, I don’t really represent them, per se; I represent the state of Oregon.

What does this mean? What’s in the best interest of the state overrides any fidelity I may have toward a particular individual—every agency of the state might as well be my client. If my colleague from downstairs asks about my agency’s decision for her agency’s issue, I can’t claim attorney-client privilege and politely decline to comment, even if it may affect my agency down the road. Has it led to some difficult conversations when I have to fill in my client? Of course! But aren’t those just opportunities to further develop the client relationship?

Karen Clevering is an assistant attorney general in the General Counsel Division, Government Services Section, of the Oregon Department of Justice.

Multiple Clients and the Three-Way Engagement

When thinking about a unique client situation, the three-way engagement comes to mind. Three-way engagements are a kind of mutual representation where one attorney or firm is engaged to account to one party, all the while keeping yet another party that may be affected by the representation in the loop of these communications. An example is in a technology transfer office (TTO) charged with managing and licensing intellectual property (IP) rights to third parties (the licensees). Here is what the three-way relationship looks like: the licensee chooses the counsel to secure its IP rights (e.g., prosecution of a patent application). The owner of the IP (likely the TTO) will also be affected by the decisions made by the licensee, so is another party to the engagement.

A trouble-free relationship?—Not necessarily. Attorney-client privilege issues may exist, and therefore it is important to research various states’ rules concerning what happens to such privilege in the event of a dispute.

A beneficial relationship? Probably. Many licensees are startups where cash is scarce, so the traditional model of having both the startup and the TTO secure its own counsel, especially considering the licensee’s interests are often in line with the TTO’s interests, can often result in unnecessarily exorbitant legal expenses.

In the balance, therefore, the three-way engagement can be a mutually beneficial relationship for all parties involved.

Hamid R. Piroozi is the Director of Intellectual Property Disclosure Management & Protection at the Purdue Research Foundation Office of Technology Commercialization (PRF otc). Pervin R. Taleyarkhan is a legal associate at the prf otc in West Lafayette, Indiana.

Judges as Clients

Everyone touching a piece of litigation has a judge as the ultimate client, whether it is the law clerk working for the file, the lawyer presenting the argument, or the client deciding the strategy. A judge’s prior practice area, tenure on the bench, prior rulings, and courtroom procedures must be researched. Law clerks should research judges before interviewing to get an idea of docket types, prior opinions, and legal experience before being appointed or elected.

The law clerk’s biggest resource, though, is the judicial assistant. Judicial assistants see clerks come and go, hear stories from other assistants, and spend time listening to court proceedings. Go on, make nice! Research is even more important to lawyers. The lawyer trying an employment discrimination case in front of a former criminal defense attorney has to approach the situation knowing he is a “more likely than not” guy trying a case in front of a “beyond a reasonable doubt” girl. It also helps to show up early and watch the other lawyers on a busy docket before making a first appearance.

Knowing where to stand may keep the judge’s focus on the substance rather than the fumblerooski. Clients should be encouraging lawyers to research how judges have ruled on similar issues. Strategy should not simply be based on what already happened, but what is going to happen next. It is helpful to lawyers in crafting their arguments to see what judges looked to and how they can align or distinguish their arguments. A few extra billable hours could make the difference between annoyance and persuasion or your lawyer using the words “client driven.” When everyone keeps the ultimate client top of mind, it could make the difference.

Sheena R. Hamilton is a trial lawyer at Dowd Bennett LLP in St. Louis, Missouri.

Balancing Competing Interests In-House

As in-house counsel, my advice and counsel may affect different parts of the business in meaningful ways. Advising the marketing unit to take a certain course of action, for instance, may have implications on the finance or sales team. I have to balance these interests against one another while also coming up with corporate legal policies, while also worrying about accounting.

Balancing these competing interests is a tough task, but my process is to do my best to envision the dominoes and anticipate questions—though no two projects are the same. If you know your client’s situation or business extremely well, you should be able to frame how the falling of those dominoes affects your client’s relationship with third parties. The key to my successes has been truly becoming an extension of all parts of my company. I understand each team’s goal, each team’s process, and how each team functions internally and with the outside world. The most effective counselors know their client’s cases, situations, wants, and needs better than the client does. You have to immerse yourself in the case by making yourself an extension of the business unit or the client.

Keith Black is an intellectual property and entertainment attorney with American Greetings in New York, New York.

When Your Client Is a Lawyer

What’s it like to have another lawyer as a client? Really, it’s no different than any other client: Each one has his or her own quirks, style, and demands. Nevertheless, being a “lawyers’ lawyer” presents unique challenges. The lawyers’ lawyer represents an educated client, better equipped to second-guess your legal judgments. The lawyers’ lawyer must be more open to client input but still able to stand his or her ground when there are differences in legal opinions.

These client interactions can only be assessed once you know who’s the client: Are you representing a law firm, an individual attorney, or some combination? This can be further complicated in direct action states where plaintiffs can sue directly the lawyer’s professional liability insurer. Here, the carrier may appoint the lawyer to represent both the insured lawyer and the carrier. Even when you are hired by the insurance company, the lawyer, not the carrier, is the client. In this situation, it is especially important to define the scope of the lawyer’s representation at the outset. For example, the case could include claims not covered by the policy, or even insurance coverage issues on behalf of the lawyer against the carrier, which must be addressed in the engagement letter consistent with your professional responsibility rules.

The identity of the client and the scope of representation are two of the unique concerns in representing other lawyers. But hopefully you never need your own lawyers’ lawyer.

Logan Murphy is an associate at Hill Ward Henderson in Tampa, Florida. Melissa Lessell is a partner at Deutsch, Kerrigan & Stiles in New Orleans, Louisiana.

Pro-Bono Clients

All people deserve quality legal representation, no matter how rich or poor they are. This belief led me to work for the Public Defender’s Department directly after law school, and to my current position as the Pro Bono Coordinator for New Mexico Legal Aid’s Volunteer Attorney Program. Working with indigent and pro bono clients has been the most challenging, yet fulfilling, part of my career as an attorney. New Mexico is one of the poorest states in the country, and we have a large number of pro se litigants. The legal system can be a daunting place for those who are not well-versed in its language and practices. Pro se litigants learn very quickly that they need a lawyer, but many also realize that they cannot afford to hire one. They are desperate, sometimes on the verge of losing their home, income, or family. This is where pro bono attorneys come in.

Many people think that pro bono just means that the attorney is working for free; however, pro bono is a shortened version of pro bono publico, which in Latin means “for the public good.” Pro bono attorneys are working to help alleviate some of the client’s desperation, and in turn, the attorneys feel good about themselves because they made the world a little bit better for someone else. I have found that in most instances, no matter whether the pro bono client ends up losing or winning, they are extremely grateful for the assistance they receive from the pro bono attorneys.

Aja N. Brooks is the statewide pro bono coordinator for the Volunteer Attorney Program at New Mexico Legal Aid.

Startup Clients

We all know our ideal client. We want exciting, engrossing legal work that benefits the client. A startup client can offer such an opportunity. A startup can be any risk-taking entrepreneur’s newly minted venture. While the recent technology boom has created an association of the term startup with the digital sphere, in fact the term startup can refer to a wide range of business having nothing to do with technology. In whatever industry a startup finds itself, it will need legal assistance. While startups as clients are nothing new, digital startups are fairly new and require similar legal services.

New businesses are often unable to afford general counsel and, in fact, may not yet need one. Accordingly, the early legal needs of a startup will likely require more than one attorney across various specialty areas. Entity formation, fund-raising, and founder agreements are important at the inception of a business, as is protecting intellectual property. Depending on the growth and nature of the startup, employment, partnering, and licensing legal needs can follow shortly thereafter. A successful startup may eventually need a lawyer well versed in securities regulations and mergers and acquisitions.

An attorney-fee structure could make or break being hired by a startup. The attorney needs to define clearly how he or she will get paid and the scope of representation. Low fixed rates are preferable for startups early on, with variable rates or hiring general counsel becoming more viable as the business grows. Figuring out the exact needs of a startup requires due diligence from the onset because the digital arena allows for any possibility.

Mathew R. Kerbis is a recent graduate working at the Law Offices of Matthew E. Gurvey, P.C. in Chicago, Illinois.

The Contingent Club

Because plaintiffs in employment discrimination claims will often be represented using a contingent-fee agreement, it is important to assess the case properly before you spend a lot of time and money litigating the matter.

Initial questioning includes making sure that the client is actively looking for work, finding out what they earned, and determining whether there is a discrimination claim, without prompting them in that direction. If you believe that there may be a claim after the initial call, you will want to review the client’s personnel file. Spend time reviewing the file to ensure that the client did not sign something agreeing to a shortened statute of limitations. Make sure that there are no write-ups or red flags that would lead you to believe that the action is actually not discriminatory.

After it is determined that a case exists, you must instruct the client to file a charge at the Equal Employment Opportunity Commission (EEOC). You may decide to represent the client at the EEOC level, and enter into an agreement for just that, stating that the agreement does not include litigation. Finally, if the claim does not resolve at the EEOC level, you will want to obtain the file from the EEOC investigation and review it.

Employment cases can be time-consuming and costly, so consider completing a number of these steps before you determine whether to represent.

Syeda Davidson is an associate at Burgess & Sharp, PLLC in Clinton Township, Michigan.

Your First Client

Whether you realize it, your first client was a lawyer. Think back to your first boss—was she a partner, senior associate, general counsel, or more senior state attorney? Before we get to work with “real” clients, we often have to earn the trust and respect of our internal clients—our superiors. If you play your cards right (read: listen, learn, and work hard), then your first client may become your biggest champion. Internal clients should be treated with the same respect, professionalism, and courtesy as external clients. If you make your internal clients look good, then you look good, mentorships grow naturally and, eventually, you turn around and realize that you’re someone’s client. All good lawyers, regardless of age or experience, should keep one hand reaching forward and the other reaching back—it is the only way to keep the profession moving forward.

Erin E. Rhinehart is a partner with the commercial litigation firm of Faruki Ireland & Cox P.L.L. in Dayton, Ohio.

The Sum of the Parts = the Client

The company is the client, not the people! It always seemed obvious, and not particularly hard, until I went in-house. Large companies often have many lines of business, with varied concerns. Moreover, when you throw multiple subsidiaries into the mix, confidentiality concerns quickly arise. In a private practice setting, it’s generally true that all of your colleagues are entitled to all of the client information. In-house, however, it can be a little murky. While it’s clear that the company at large is the client, each line of business or subsidiary constitutes a separate relationship. Sometimes the business partners at one internal client are simply not entitled to the information that another internal client gives me. It can be difficult when I know the information would be helpful; it is even more difficult knowing that if the transaction or idea is executed successfully by one client, it can only be to the detriment of another. Such moments are undeniably rare, but they highlight how fragile the client relationship can be, even when everyone is working on the same team.

Lisa Kothari is the tax director at Quidsi, Inc., an e-commerce company in New Jersey.

The Lone Client

My client is the individual. However, sometimes, that individual brings along others, such as a mother, husband, sister, or friend, who also want to be involved. Although these loved ones may assume it is okay to discuss the case with me because they have a close relationship with the client, my only client is the person who has signed the retainer. The attorney-client relationship begins once that contract is signed, as does the attorney-client privilege. This means I cannot discuss my client’s case with her friends or family, unless the client gives me authorization in writing. Even then, when it is time to enter into settlement negotiations, it is my client who gives me the final authority.

There are also situations where I may represent separate individuals together in one case, such as a husband and wife who sustain injury in a car accident. However, before I sign up such a case, I must first do a conflict check. If I see any hint of comparative negligence on any of the parties, I can only accept one as my client and the other must retain separate counsel. If there is no conflict, I must still remember that they are individual clients and that all decisions must be made with the best interest of both parties in mind.

Carolyn Tan is a civil litigation attorney with DeWitt Algorri & Algorri in Pasadena, California.