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Investigate your potential client? It’s more important than you think

By Jeremy Byellin

Although the prospect of a new client is appealing to attorneys, a freshly developed attorney-client relationship brings with it new responsibilities, many of which should be considered before commencing with representation.

Nevertheless, the outset of representation is when the brunt of these duties, including information gathering such as conducting a check for conflicts of interest and learning details about the client matter, is felt. Although such factual investigations about the client matter are almost always considered, far less often do attorneys contemplate investigating the potential client as an individual before they’re a client.

Why should I investigate potential clients?

The short answer is that it’s wise to avail yourself to all possible information about your potential new client and his or her background before making the plunge into representation.

The long answer, which will be answered more exhaustively throughout the rest of this post, is that there may be multiple potential risks about a new client that may be uncovered (and hopefully avoided) through such due diligence.

First, you must ask yourself, what aspects of the potential client history should I check into, and why? And, what potential legal and ethical risks am I hoping to avoid?

Is there any potential criminal activity?

A potential client’s criminal history often has a significant impact on the outcome of the case itself, so looking into such matters is customary for most criminal defense attorneys. For attorneys in every other area of law, though, a potential client’s criminal history may not even be a consideration. Although this omission may be innocuous in some situations, it may be damaging in many others.

Some attorneys may be incredulous at the prospect of a client’s criminal history impacting his or her divorce, employment claim or personal injury case, but it’s far more relevant than in may initially appear.

First, although it may be stating the obvious, criminal convictions are often used as indicators of one’s character. In family law, for example, any potentially damaging character trait may come up to haunt that party in child custody and divorce proceedings. Also, in many other types of civil actions, you may find that any negative aspects of the potential client are fervently sought after by the opposing party. What’s more, in virtually all circumstances involving testimony by the client in court, crimes of dishonesty may be used to impeach the potential client’s character for truthfulness.

While this potential client will undoubtedly have an explanation for why the conviction isn’t as bad as it seems, no matter how mitigating the circumstances may be, the facts of the public record will speak for themselves. And although there’s no way to wipe away your potential client’s criminal record (possibilities of expungement notwithstanding), knowing about it before you begin representation allows you to not only decide whether you wish to proceed with representation in the first place, but also, should you proceed, to have all the facts available to better plan case strategy and more appropriately set client expectations.

What about civil actions?

Despite generally not being as relevant in most situations as involvement in criminal actions, it’s undoubtedly important to be aware of the civil lawsuits with which your potential client is involved.

As with criminal actions, in a civil action, a client’s status as a defendant typically indicates that he or she is, at a minimum, accused of doing something wrong. Furthermore, these actions are largely a matter of public record — meaning, the opposing party may access them with little effort. It’s important to consider such information and the impact it could have on the case in deciding whether to proceed with representation in the first place.

Still, complications don’t only arise with a client is on the “defendant” side of the “v.” in a civil action. That is, a potential client appearing as the plaintiff may create the risk of the client appearing overly litigious, especially if he or she is responsible for initiating multiple lawsuits, or if such prior lawsuits have especially shaky legal foundations. Once again, learning of these actions doesn’t allow you to change the past; but being equipped with an awareness of them will let you better decide whether the representation is worth your time — and if so, to more effectively plan out the client matter.

But knowledge of the potential client’s involvement in other lawsuits may impact more than the client matter itself; that is, researching such information may ultimately affect your firm’s bottom line. Specifically, if the client has ever sued another attorney, take heed: such a lawsuit may suggest that your potential client may be inclined to blame you personally for any disappointment in the legal matter. On the other hand, the client being on the receiving end of such a lawsuit may indicate that the client may not be trustworthy when it comes to paying your bill — and that the relationship between potential your new client and their previous attorney worsened so much that the attorney sued.

This doesn’t necessarily mean that you should never take on such a client, but it does certainly warrant concern. And you will be better able to take the necessary steps to protect your interests by having this information in hand.

What’s the potential client’s online presence?

As if attorneys didn’t have enough to worry about with their clients, the internet has generated a plethora of new ones. The internet promises a glut of information about nearly every individual — but generally fails to mention that this information is very often inaccurate or incomplete.

Naturally, attorneys must be the first to identify online records about their clients so that they can identify and minimize the further dissemination of any harmful information. In case such information may have already been accessed by the opposing party, attorneys must be able to adjust the case strategy accordingly.

Attorneys must also advise their clients on preventing any possible future dissemination of adverse information by minimizing the client’s presence on social media. What’s more, attorneys may need to explain what could constitute “adverse information.”

Know your client — for your sake!

These considerations may certainly seem overwhelming — especially when contemplated amid a host of other concerns before the start of the attorney-client relationship. Nevertheless, researching a potential client at the soonest possible time may save not only time but money and a lot of possible professional headaches that could be easily avoided.

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