Starting this month we now have two new columnists at SPU, Mark Bassingthwaighte, who is an attorney and a risk management advisor at ALPS,and Wendy Inge, also of ALPS. They will both talk candidly about managing your risk from the obvious to the completely unexpected.  There will be something for everyone. They’ll both be available to answer your questions in the comments and certainly take advantage of it!

We all know what they say about running with assumptions. Truly, trouble can so easily follow when we do; and in the practice of law, the eventual outcome can be quite serious. From a risk perspective, role clarification and file documentation are two of the obvious preventative measures. The trick is in trying to identify all the times when an assumption might be in play so that appropriate steps can be taken. My best advice in this regard is to suggest that you try to place yourself in your client’s shoes and consider what they might be thinking about a conversation or how they might be responding to a given set of circumstances. Simply stated, come at it from the other side of the attorney/client relationship.

For example, one can appreciate what a personal injury plaintiff attorney’s intention might be with a contingency fee agreement scope statement of “I am agreeing to handle any legal issue that arises out of the accident of such and such a date.” It’s a statement intended to keep the door of opportunity open. Unfortunately, it’s the client’s interpretation of or response to the scope statement that will matter. Some clients might now expect that the attorney has also agreed to handle a related traffic citation, an eventual divorce action, or a wrongful termination claim any of which had some tie to the accident. Life can be messy. Clarify your scope of representation before you get caught up in a client’s mess. Define in writing what you are agreeing to take on and, particularly with any kind of limited scope representation, consider also documenting what you are not agreeing to take on.

Now think about the following situations. Adult children schedule an estate planning appointment for their parents after first meeting with you. At a real estate closing the purchasers asks you, the lender retained attorney, a legal question. A non-client calls your firm for a quick bit of advice or a family friend asks for your thoughts at a social function. A corporate client asks that an opinion letter be drafted for sophisticated investors. One of the corporate officers of a firm client asks for legal advice from you, a firm attorney/corporate board member. Or perhaps the adverse party in a matter you are involved in is preceding pro se. At ALPS we have dealt with claims that have arisen out of all of these situations and many more just like them. With each you would know what you believe your role to be; but remember that actions speak louder than words. The important question is whether the individual or individuals that you would be interacting with are seeing it similarly.

Documentation of your role is critically important in all the above situations and this should almost always be done in writing. Come at it by taking a moment to ask yourself just who is my client? That question can help you clarify your role. Just as important to this documentation piece is your ability to remain consistent in your actions over time. In other words, and in spite of documentation to the contrary, your subsequent actions can unintentionally create an attorney/client relationship with a related party and that can be a real problem. For instance, if you state and document that you represent an entity yet through your actions and advice begin to allow a corporate constituent to conclude you also represent her, that may very well end up being the case and now you’ve got a conflict problem.

Sometimes a lawyer will share that they viewed the matter as something other than legal work. They will say “This was just a favor for a friend. I was going to look into it when I could.” I love that one. Here, the lawyer saw the request for help as a favor and nothing more. This is another assumption because from the friend’s perspective their legal matter was now in the competent hands of their attorney/friend and they expected nothing less than an excellent outcome. Should you ever find yourself in a similar situation, remember that you have agreed to place yourself in the role of attorney. View this as real legal work and follow-up in a timely and responsible fashion. Trust me, friends, family members, and even staff will sue if their matter is forgotten about or handled negligently; and the fact that no fee was involved is irrelevant. The standard of care isn’t any less just because you agree to provide your services for free or view this as a favor.

Assumptions come into play more often than I think many of us realize and they can lead to serious problems if never questioned and left unaddressed. If any of you have a story to share or a lesson learned after you ran with an assumption, please share so that the rest of us may benefit from your insight and hopefully avoid making a similar mistake. If you are hesitant to do so, think about this. To assume that you have nothing to add is…. well you know the rest.