Much Ado About Clients: Finding, Friending and Firing Clients


Much Ado About Clients
Finding, Friending and Firing Clients

June 21-22, 2023
Washington, DC
Moderator: Steven K. Mignogna

This comprehensive 2-day program charted the challenges and limits of client intake, management, and disengagement – and was be packed with ethics credits. The panels covered the lifecycle of a client in today’s practice, including what Fellows need to know about modern and effective — but still ethical — client development, especially with increasing technology coupled with limitations that state bar associations are increasingly imposing. The sessions also analyzed the most crucial aspects of client intake and retention, and feature the latest updates, commentaries and forms issued by ACTEC. Significant (but sometimes controversial) retention terms were assessed. Along the way, we learned about the handling of conflicts, and how the courts are more regularly sanctioning lawyers for (mis)management of them. Finally, the programs addressed the thorny issues of if and how to end the client relationship, both in the planning/administration and the litigation contexts. This included crucial developments as to the ethical standards for handling original client documents. 

Session 1: Modern Marketing of the Trust and Estate Practice (Ethics)

“This above all: to thine own self be true.”

Initially, the panel discussed the modern process of marketing, whether individually or as part of a firm, the most effective options for marketing, and knowing what works best for you and your practice. Should you hire a marketing coach? Do you want to do a podcast? Can you say you are a Super Lawyer? What resources does ACTEC provide?

The panel also discussed the ethics of marketing, including a discussion of the Model Rules, such as: Rules 7.1, 7.2 and 7.3 regarding communications with and solicitation of clients; Rule 1.1 on competence; Rule 1.6 as to confidentiality of information; and Rule 1.14 on clients with diminished capacity. The speakers also surveyed state model rules and recent state opinions updating their model rules, such as rulings on the use of superlatives in attorney advertising.

The program featured the latest updates, commentaries and forms issued by ACTEC. The art of the client intake will be covered, including strategies for pre-screening clients and evaluating whether you are right for the client and the client is right for you. The panel also addressed options for handling initial conflict checks and related challenges with representation of spouses, multiple family members, individuals, and business entities

Speakers: Robert Barton, Craig M. Frankel, Wendy S. Goffe, Jill Lebowitz

Session 1 Materials | Audio Recording

Session 2: Setting the Table for Successful Retention & Billing (Ethics)

“To be or not to be, that is the question.”

The session focused on the nuts and bolts of drafting an effective engagement letter using ACTEC’s “Engagement Letters – A Guide for Practitioners” as a springboard for discussion of several important issues and considerations. The panel started with an evaluation of the importance of identifying the client and carefully defining the scope of the proposed representation, including clarity as to the separate responsibilities of the lawyer and client.

That discussion continued into ways to structure the relationship from a billing perspective, including an analysis of different types of hourly, fixed fee, and contingency arrangements and the important considerations of each for estate planning, administration, and litigation. The panelists addressed the importance of including standard provisions relating to routine issues such as the selection of a fiduciary, gifts to charities, and other routine planning topics which could give rise to disclosure obligations on the part of the lawyer.

A substantial portion of the discussion also focused on the ethical and professional responsibility issues in an engagement letter, including conflicts under Model Rules 1.7 and 1.9, expectations as to client confidentiality under Rules 1.6 and 1.14 in the event of diminished capacity or death of a client, and the importance of protecting and preserving privileges, especially with fiduciaries. The panel shared proposed forms and checklists for use in your practice.

Speakers: Peter T. Mott (Moderator), Adam T. Gusdorff, William Thomas Hennessey, III, Anita J. Siegel

Session 2 Materials | Audio Recording

Session 3: Maintaining the Client Relationship (Ethics)

Now that the client has formally retained you, the next challenge is to properly maintain and protect the client relationship. This presentation analyzed counsel’s ongoing duty to preserve the confidentiality of the client’s information and the details of the representation under Model Rule 1.5, including how to manage a client who may tend to “over-share” information on social media or otherwise, and strategies for preserving privilege when communicating with a client’s agent.

Additionally, while many attorneys have lost sleep (or their clients) due to unforeseen conflicts arising during the representation, the panel discussed how to navigate these conflicts in accordance with Model Rules 1.7 and 1.8, and the circumstances that may dictate the need to engage co-counsel in another jurisdiction or with subject-matter expertise.

Finally, the panel explored proper billing practices under Model Rule 1.5, the art of entering time in both transactional and litigation matters, and strategies for ethically getting paid for legal services.

Speakers: Crystal West Edwards, Robert M. Harper, Daniel Hayward

Session 3 Materials | Audio Recording

Session 4: Breaking Up is Hard to Do…. Sometimes (Ethics)

“All’s well that ends well.”

No one really enjoys “breaking up.” That includes attorneys and the termination of their client relationships.

This program explored the termination of the attorney-client relationship and the issues we as practitioners should consider when the attorney-client relationship has, should, or must come to an end. Different considerations can apply in different settings, such as estate planning, estate administration, trust and estate litigation and others. This session will address the ethical rules, particularly Model Rule 1.16 on declining or terminating representation and Rules 1.7 through 1.9.

The panel also included ACTEC advice and practical considerations on topics such as: the practitioner’s (and his/her/their firm’s) retention or provision of original documents; conflicts arising among spouses, siblings or other co-clients or separate clients; and troubling conduct by the client (such as billing issues, refusal to follow advice or abhorrent or criminal conduct).

Speakers: Brian J. Felcoski, Cynthia G. Lamar-Hart, Warren K. Racusin

Session 4 Materials | Audio Recording

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