Develop the engagement habit

4 September, 2019
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Think through the engagement decision process for every client and matter to help avoid claims.

Lawyers can get themselves into hot water when they neglect to go through a thorough engagement decision process. Before agreeing to act in any new matter consider whether it is the:

  • right client in the
  • right matter at the
  • right time.

To help with this process, LPLC has developed an engagement decision tool.

Right Client

Who exactly is the client? Is it a corporate entity, trust, joint venture, couple or an individual? Are you acting for more than one client?
Write to unrepresented parties to confirm you are not acting for them. Assess whether the client or clients have capacity, authority and the right to deal in relevant assets.
Check for conflicts and consider whether the client poses any strategic or reputational concerns for your firm.

Right Matter

Despite your natural inclination to help a client, you need to assess whether the matter is within the firm’s area of expertise and consistent with the firm’s business strategy.
Be clear about the scope of the proposed work and what the client is wanting to achieve. Ascertain if your firm’s retainer is to be limited, including whether some work is to be done by the client or other advisers. Be realistic when considering if the client’s expectations are achievable and whether your firm can provide the services in the timeframe and at the price the client is willing to pay.
Identify critical dates, timelines and consider what could go wrong. Consider the steps your firm needs to take to manage the risks, how these will affect your handling of the matter and the cost implications. Ensure you have all the information you need from the client to make these assessments.

Right Time

Even if it is the right client and the right matter it might not be the right time to do the matter well.
This may be because the people who would normally work on the matter are too busy, away sick or on leave. It may be because your firm currently does not have other resources such as technology needed to meet the client’s requirements and expectations.
Again, be realistic when assessing your firm’s capabilities.

It’s OK to say no

Get into the habit of systematically considering these issues before deciding whether to act. Build formalised decision-making into your firm’s engagement processes.
Have a client and matter selection policy to ensure consistency of approach throughout your firm. Firms that target a narrow field of work are more likely to have a high degree of expertise in their chosen areas. This makes it easier to attract and select the right clients, avoid legal errors and have checklists, precedents, workflows and other processes to support the production of quality work.
Saying no to work can be difficult especially if the work is offered by an existing or previous client. Practitioners often feel that they are letting the client down by rejecting the work. You may feel actual or perceived pressure to accept the instructions, but if it is not in your defined work area you are not the best person to take the job. You are not acting in the client’s best interests.
A good strategy is to help the client, or would-be client, find the right lawyer for their matter. Have a network of referral firms for work you get asked to do that is outside your scope. If you don’t know firms in the area the client needs, refer them to the LIV’s referral service. Most clients will appreciate your help and it will soften the blow of saying no.
Developing the engagement habit with a formalised and embedded process will take you a long way towards avoiding potential claims. The LPLC engagement decision tool poster is available for download on LPLC’s website at lplc. com.au/edt. For a printed version contact LPLC at https://lplc.com.au/contact/.

Tips

  • Identify who the client is.
  • Assess capacity, authority and right to deal.
  • Check for conflicts and alignment with business strategy.
  • Define the scope of work and consider whether the client’s expectations are realistic.
  • Consider whether your firm can do the job well at that time.
  • Learn to say no to clients and confirm non-engagements.