Published on 1/3/11
When does a mere visitor to your website, blog or LinkedIn page become a prospective client?
The answer seems obvious on the surface. Everyone that a lawyer meets — including in cyberspace — is a prospective client; to think otherwise is to say you don't believe you have something of value that can help the person reading your material or standing in front of you.
On LinkedIn, for example, if you have an interest in marketing to banks, you can look at the users linked to you and to others and readily identify any number of potential contacts. That creates an almost unlimited pool of prospects without boundaries.
But exactly when does a prospect become a client? Rule of Professional Conduct 1.18 discusses the issue at length, beginning with the assertion that "a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client."
The commentary on the rule adds that "a lawyer's discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients."
It is important to make sure that prospects who have initiated contact through the Internet understand that. Many firms have on their websites a disclaimer or waiver agreement which affirms that mere contact, through an exchange of e-mails, for example, does not establish a lawyer-client relationship.
Some jurisdictions require a written engagement agreement to affirm that a prospect has become a client. But there is a plethora of cases in which an attorney-client relationship is presumed by virtue of the parties' conduct, an implied-in-fact relationship.
When does that occur? Despite all the niceties and the intent on the part of the attorney to be in control of when it occurs, the real answer is when the bar says it occurs. And the bar gets involved when the "client" becomes unhappy and files either a disciplinary complaint or a lawsuit for malpractice or breach of contract.
That is why the intake process of understanding a prospect's expectations, negotiating the nature of the engagement and preparing a written engagement letter is essential. It enables you to avoid establishing a client relationship with a prospect who has unrealistic expectations or demands and who believes that your estimates, whether of time or outcome or costs, are guarantees instead of informed estimates.
Discussing engagement terms with a prospect will frequently uncover someone who as a client will chronically complain about everything, to you and to the bar. Rejecting such prospects before representation will minimize aggravation — and possible malpractice claims.
