When interviewing a prospective or prospective client, most lawyers are aware that various ethical rules apply and can make representation impossible.
This reality was highlighted in the critically acclaimed HBO mob drama “The Sopranos”. In one episode, the series protagonist’s wife tries to hire a divorce lawyer. After contacting various local lawyers, she realizes that her husband has already met the best.
Her husband’s actions ensured that none of them could accept his wife as a client. The lawyers were unable to represent the woman as her gangster husband had already discussed certain confidential details of the divorce with them.
This fictitious account is an enactment of Rule 1.18 of the ABA Model Rules of Professional Conduct, which deals with obligations towards potential customers. Although the Sopranos episode was fictional, the obligations of rule 1.18 are very real.
You don’t want to be able to interview a potential new customer only to find out that you can’t really represent them because of a conflict of interest with an existing customer.
In addition, receiving important information from a prospect could result in the loss of both the prospect and the existing customer due to the conflict of interest. Worse still, the conflict of interest could have ethical, disciplinary and financial implications.
These ethical concerns date back to days before the Internet, but still apply today with the advent of online customer admission requests.
Avoid Conflicts of Interest
Ethics scholars could derive the episode of “The Sopranos” as straight from the “Restatement of the Law (Third): The Law Governing Lawyers”, which provides the exact scenario in the fictional episode as an example of how rule 1.18 works.
In fact, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 492 to look directly at how the rule is applied in practice.
Formal Opinion 492 states that “Lawyers should warn potential clients not to disclose detailed information” before hiring the lawyer. It is also suggested that the lawyer “may make a consultation with a prospective client conditional on the individual’s consent that no information disclosed during the consultation will prevent the lawyer from representing another client on the matter.”
These suggestions address the problem in the episode of “The Sopranos” where communicating with a prospect could inadvertently prevent the attorney from representing a prospective client.
Equally important, however, is the potential for the attorney to come into conflict from representing an existing client.
That is, if an attorney receives important information from a prospective client without first looking for potential conflicts of interest, the attorney may be asked to decline to represent the prospect.
In addition, the lawyer can also be asked to withdraw from representing an existing client whose “interests are essentially opposed to those of the potential client”.
To reduce these risks, attorneys should consider doing conflict screening as an early – if not the first – step in interviewing potential new clients, be it in person or online.
The benefits of online recording applications
Many law firms rely on paper admission forms or notes for client admission and conflict review processes. With the advent of online billing systems, more and more law firms are performing these activities using automation.
The inefficiencies in having a prospect fill out numerous forms in order to later translate that information into a digital form are inherent. According to Lexicata, even companies that do an average of 30 things a month and charge $ 250 an hour still spend up to 180 hours a year entering data to ingest data. That’s $ 45,000 that these lawyers are going to miss out on each year.
Online admission forms prevent an annoying, non-billable process and organize relevant information to make it easier to access if necessary. In addition, the online recording software offers companies the opportunity to customize their recording formats in whatever way they find most advantageous.
According to a recent survey by the Purdue University Department of Horticulture, an attorney can go through up to 100,000 sheets of paper per year. When you consider that the average cost of 10 oodles of 500 sheets of general-purpose copy paper is about $ 54.99, it means that each lawyer in a law firm spends about $ 1,100 a year on paper.
Any steps to reduce costs that do not affect performance or customer satisfaction can only help move a company in a successful direction. Additionally, a greener approach can be a selling point for potential customers.
Some may object to the idea of online customer admission forms because they create too impersonal a relationship.
However, a recent report by Usabilla indicated that the majority of survey respondents would rather use an automated customer service option than interacting with an actual person if only 10 minutes could be saved.
In addition, online forms allow customers to explain their situation as clearly as possible for re-reading, editing and ensuring they get all the information they think is necessary.
Regarding online admission forms, Formal Opinion 492 suggests “using an explicit warning on a website admission link stating that sending information to the firm does not create a client-attorney relationship and may not privilege the information or treated confidentially. ”
To avoid having to step down from representing an existing client, law firms should select online admissions applications that allow conflict checks to be conducted before the prospect provides information.
Additional ethical concerns
In the digital age, information security has become a major concern. It’s no secret that law firms are one of the biggest targets for hackers, as clients’ confidential information can be extremely valuable.
Accordingly, it is not inappropriate to have concerns about the security of sensitive information in a digital space. Indeed, it is the prudent and ethical approach.
Apart from that, this criticism of online admission forms is short-sighted, as the information from paper admission forms is also uploaded to the practice management software without exception. The ubiquity of the problem makes the inherent defense of client data from cyber attacks a matter of course. Of course, it is still of paramount importance that law firms do everything in their power to ensure the security of their client information.
To this end, the American Bar Association recommends law firms “take positive steps to prevent unauthorized access to customer information.” These steps can be as simple as implementing multi-factor authentication (e.g. security codes sent to a cell phone or an email address). According to Symantec, a cybersecurity agency, “80% of violations can be prevented by using multi-factor authentication.”
Using encryption can also help. Encrypted online admission forms should meet the ethical requirements associated with the compilation of confidential customer data, such as: B. Social Security Numbers, Financial Information, and Other Personal Information as set out in Rule 1.6.
In addition, online admission forms could also help lawyers meet the “technological competence” requirements of Rule 1.1. This rule has recently been expanded to require any available technological advances or tools to be used to provide the most competent and effective representation possible to customers.
It is no longer ethically acceptable to maintain familiar but outdated methods and practices at the expense of modern competence for reasons of convenience. Failure to adjust to the times can create difficulties in staying competitive in a controversial area.
In any case, the duty to avoid conflicts of interest – with both potential and existing customers – remains the same. Law firms should select online customer intake applications that are designed with this reality in mind.