When Does a Prospect Become a Client?

11/01/2010
Published in Lawyers Weekly, November 2010

When does someone visiting your website, blog or LinkedIn page become a prospective client? This does not seem to be a difficult issue. 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 who is standing in front of you. Of course, if your target audience is not focused on using the Internet and searching the web on a regular basis, then you likely will not get many new prospects and clients that way.

For most lawyers, however, a website is a given and blogging or social networking online can be a perfect way to attract prospects. LinkedIn, on which you invite other business associates to be part of your contact network, is an excellent option. On LinkedIn, if you have an interest in marketing (for example) services to banks, you can look at the users linked to you and to others and readily identify any number of potential contacts. This creates an almost unlimited pool of prospects without boundaries.

The more difficult question is when does a prospect become a client? Rule of Professional Conduct 1.18 discusses this 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 this 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 this, and many firms on their websites have a disclaimer or waiver agreement which affirms that mere contact, for example through an exchange of emails, 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 are a plethora of cases where an attorney-client relationship is presumed by virtue of the parties' conduct, an implied-in-fact attorney-client relationship. And when does that occur? Despite all the niceties and the intent on the part of the attorney to be in control of when this 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 with the State Bar 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.

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