In fiscal year 2017, Army legal assistance offices saw approximately 116,000 cases. Of that large number, over 31,000 related to family law.1 That is 31,000 instances where an attorney meets a family law client for the first time. That is the equivalent of almost two divisions’ worth of complicated and emotional files. In some eighteen years of practice, both civilian and military, encompassing active and National Guard duty, I have seen initial client meetings take numerous forms. Further, in a former life within the corporate world, I was often a “client” as the litigation manager. In this capacity, I regularly retained, collaborated with, and sometimes terminated litigation counsel. I gleaned some perspective of what it is like on the client side of the desk. Understanding that all legal situations are unique, which is why the practice of law is inherently personal, the initial client meeting sets the roadmap for the attorney-client relationship. This relationship, in turn, often drives whether the representation results in success or failure. This note reviews some best practices in establishing the attorney-client relationship from before the meeting happens through the development of the legal strategy.
You mean business, so make your workspace look that way. Your office aesthetic is the first impression you will make on clients, superiors, and subordinates. Place your law degree in a prominent position where clients will be able to read it. Diplomas from Army or other military schools may also be displayed. Other accoutrements should only be displayed if they do not clutter your work area. This includes coins, PCS gifts, and the like.2 Place your computer and monitor in a position where others cannot see the screen. Remove client files and other work product from your desk so the client consciously or unconsciously understands that he or she is your primary duty. Make sure you have a box of tissues for clients that may potentially cry. Have bottles of water (not purchased with appropriated funds) to set clients at ease. Everything must be done and placed with a purpose. The purpose is to ensure that the client understands he or she will be dealing with a serious legal practitioner. Finally, do not allow clients to break the perimeter of your desk. The perimeter is the point where a client would be able to read your computer. This places you in the best position to initiate a successful initial client contact.
2. Initial Client Contact
Ideally, you will have a client card or other understanding of the reason a client seeks legal assistance. However, this is not always possible. Develop a script and practice it.3 This is doubly important if you, like me, tend to operate on the more laid back side of the assertiveness scale. The client must understand that you are capable of successfully handling their problem. It is highly unlikely that your client made the appointment because he inherited $5 million dollars. The likelihood is something really bad happened or is about to happen. Introduce yourself, look them in the eye and give a firm handshake. From there, sit the client in a way that you can take notes and observe their behavior. With the personal formalities complete, move on and dispose of the legal formalities—the two Cs.
3. Confidentiality and Conflicts of Interest
Do not mess up the easy stuff. As with any state, our Army rules for professional responsibility address confidentiality and conflicts of interest.4 Develop an opening discussion point where you outline your confidentiality duties (rule 1.6). To paraphrase, offer that you cannot reveal information related to the representation unless the client consents after consultation.5 Depending on the situation and the complexity, you may also need to explain you are allowed to disclose information to carry out the goals of the representation and must disclose information that you, as counsel, reasonably believe necessary to prevent the client from committing a criminal act likely to result in imminent death, substantial bodily harm, significant impairment of the readiness of a military unit, aircraft, or weapons system.6 The bottom line is you do not gossip about what clients tell you.
After setting the client at ease by ensuring him you will not call his boss, friends, or family, clear for any conflicts of interest (rule 1.7). Ask whether the potential client has spoken to any other attorney about the matter in which they came in and whether they have had an attorney for any other problem.7 As with many subtleties of advocacy, this standard two minutes serves an additional purpose. By explaining the rules and why you are doing it (the “what and why”) you begin building the attorney client relationship. Use the talk to instill confidence through the accurate demonstration of two points of law. Further, if the client discloses past legal problems you get a window into his character and propensity for truthfulness (or lack thereof). This sets the stage to delve into the actual legal problem(s).
4. Ascertain the Problem and Define Success
Who, what, where, when, why, how. Good questions are almost all simple derivatives of the above. If time permits, take the client card and set up an intake checklist to drill down into the client’s problem. Using a marital separation as an example, begin discussions along the following general lines of inquiry:
- When were you married?
- Who are you married to?
- When did you separate?
- Where are both of you residing now?
- How long have you lived there?
- How many kids do you have, if any?
- Where are the kids residing?
- How much money are you providing/receiving each month in support?
After locking in the essential data points, ask open ended questions to get the client talking:
- Tell me what happened.
- Why in your perspective did you separate?
- Why in your spouse’s perspective did you separate?
- When did command get involved and what have they done?
Ask the client to talk about their marriage. As an alternative, ask the client to describe their married life from the beginning.
Actively listen and look to spot several critical issues. First, identify whether there may be any criminal culpability on behalf of your client, the spouse, or other actor. This includes sexual assault and adultery. Also look for fraternization or other inappropriate relationships. Second, identify whether there are friction points that indicate that the marital relationship is irretrievably broken. Third, identify whether the marital issue is leading to work performance issues. Fourth, identify potential child custody and support issues, thinking through a home state and best interest of the child lens.8 Finally, use the client’s tone, words, and body language to evaluate truthfulness and understand what acceptable and successful legal solutions may entail.
Conclude by asking what the client believes would be a successful result and offering what, with your knowledge and experience, a successful result may look like. Either way, do not sugarcoat the likely result and its second and third order effects. As you weigh the pros and cons of a legal solution and the next steps, remember the practicalities. Most clients will be poor. Therefore, money matters. It either played a role in the discord or will play a role in any marital separation or divorce. Just keeping a client in the Army a few more months may make the difference between solvency and bankruptcy. Therefore, think with your head, not with your heart, and get their budget.
5. Get the Budget
You can identify a person’s priorities by reviewing their budget, leave and earnings statement, and checking account. Money, or more accurately, the profligate spending thereof, the gambling thereof, and the using thereof to consume drugs or alcohol is the cause of most family and consumer law issues inside and outside the military. One benefit of military clients is that you can ascertain the client’s income. Keep the pay chart available. Have the client complete the sample budget sheet then look for irregularities between income and expenses.
You will be able to understand whether your client can afford a Dodge Challenger (R/T Scat Pack) or Ford F-150 (Black Ops edition).9 You will be able to identify potential drug or alcohol issues. You can also tell whether your client can afford to pay interim support payments under Army Regulation 608-99, or conversely, how much money your client needs to sustain while separated. Think creatively. Use the budget to frame your arguments and course of action, whether that is to negotiate a higher or lower interim support payment or to counsel clients to sell property to increase liquidity to set the stage for a potential reconciliation.10
6. Develop and Confirm the Course of Action
Using the client’s answers, demeanor, and the newfound knowledge of their finances, set a course of action that is suitable and feasible. Though acceptability will be within the client’s purview under our rules for professional conduct you can frame the potential outcomes.11 This is done by identifying the client’s best alternative to a negotiated agreement (BATNA).12 To paraphrase, the BATNA is what you will do if you cannot settle with the counterparty (usually a spouse or the command).
If you can negotiate better terms than your BATNA, then you should accept a settlement. If you cannot negotiate terms better than your BATNA then you should walk away and pursue your best alternative course of action.13 Obviously, a good BATNA increases your leverage. If you know you have solid alternative courses of action, you do not need to concede as much because you have alternatives to a deal. Conversely, if your options are slim, your counterparty can make heavy demands and extract concessions. Work with your client to improve your BATNA. If you have a strong alternative, consider revealing it to the counterparty to solve your client’s problem on favorable terms as quickly as possible because time is almost never the legal assistance attorney’s friend.14
Legal issues get worse the longer they are unresolved. Therefore, look for solutions that solve the underlying problem or provide a path to resolution as quickly as possible. This is especially true when representing young Soldiers who may have short attention spans or may neglect to follow up on required action items.
Balancing BATNA and time, a successful representation often entails lowering interim support payments so a client can stay financially solvent while determining whether to seek a divorce. This may just entail a few phone calls and creative negotiation. Another successful representation that can save clients thousands of dollars is identifying a correct divorce jurisdiction. Again, perform the legal analysis, combine it with your BATNA, coordinate with the client, and communicate any client handoffs. Regardless, give clients peace of mind and ensure your effective representation by following up on any open issues.
7. Communicate and Follow Up
If the issue cannot be concluded in one visit, regularly communicate the case’s status and set appropriate follow up meetings. This may be weekly or monthly. The point is to maintain the client’s confidence. There is a strong correlation in client satisfaction and effective follow up.15 Often the positive resolution of the legal issue takes a back seat to the client’s perception that his problem is being actively addressed by a competent, empathetic attorney. Within this construct, however, do not make excuses or apologize for your legal work. If you followed the above steps, you set the stage to be effective. Quite simply, you will often be playing a losing hand.
The initial client meeting sets the roadmap for the attorney-client relationship. This relationship, in turn, often drives whether the representation is successful. Like advocacy in the courtroom, the initial meeting can be scripted, practiced, and trained. It makes everything that comes after easier. The client will be more open. When the client is more open to disclose facts and circumstances, it improves your ability to analyze the situation, understand the BATNA, and to develop potentially successful courses of action. This puts you and the client on the same page by defining success and the likelihood of getting there. Success may simply be keeping your client in the Army for a few months longer so he or she can bank some extra money or receive additional medical care. For others, it may be separation as quickly as possible. There is nothing worse than a client with a losing fact pattern who leaves his attorney meeting with a false sense of security. Once success is defined, develop the roadmap. This may be negotiation with opposing counsel, letters to a commander, rebuttal briefs, or litigation. No matter, every problem requires a different tool. Develop those tools with the information gleaned, and the confidence gained, from the ability to conduct effective client interviews. TAL
1. Fiscal Year 2017 legal assistance statistics, Client Information System (17 April 2018) (on file with author).
2. I recommend refraining from having visible family photos. There is no need for legal assistance clients to be able to identify your spouse, children, or other family members.
3. I have never been able to eliminate the “drop in” client. This often happened during my National Guard service wherein you would only see customers and clients once per month. To properly manage these situations, I recommend a baseline checklist while taking proactive steps to not unknowingly or unnecessarily creating an attorney-client relationship.
4. U.S. Dep’t of the Army, Reg. 27-26, Rules of Professional Conduct for Lawyers rules 1.6 and 1.7 (28 June 2018) [hereinafter AR 27-26].
9. In the unlikely event your client can afford one of the above mentioned vehicles and does not already own one, the vehicle becomes a need, not a want.
10. U.S. Dep’t of the Army, Reg. 608-99, Family Support, Child Custody, and Paternity para. 2-1 (28 Oct. 2003) [hereinafter AR 608-99].
11. AR 27-26, supra note 4, rule 1.2.
12. Roger Fisher & William Ury, Getting to Yes, Negotiate Agreement Without Giving In 97–108 (3rd ed. 2011).
15. http://lawfirmsuites.com/2016/02/keeping-clients-happy-as-a-solo-attorney/ (last visited 23 May 2018).