There are times when junior counsel will ask me my advice on what to do when they receive a call from a potential client who is already represented by another lawyer. The answer is not as simple as it may appear at first blush. There are competing interests here that need to be taken into account, and a responsible lawyer must be careful to proceed with caution when this happens.
The first thing to remember is that the goal here is not to simply ‘land the client’. I recognize that as lawyers we are also operators of small businesses that needs clients to succeed. We practice the law for the love of the law, but we also have an obligation to pay our bills and ensure that we make a steady income. However, in the case of a potential client who is represented by another lawyer, we must be mindful of our professional responsibilities as well. We have a duty to act in a courteous manner with other counsel and this includes what I refer to here as ‘the courtesy call’.
When speaking with the potential client on the phone, you must establish the parameters of what you can and cannot do as soon as the issue becomes apparent. Counsel should tell the client that they cannot assist the caller until they have had a chance to contact the other lawyer. The client should be encouraged to speak with their lawyer and work out their issue. They should also be told that you will not take them on unless/until you have had the opportunity to speak with the current lawyer. It is acceptable to get a general idea of what the problem is in the current solicitor/client relationship, but I would refrain from providing advice or taking sides in the issue.
Ask for permission to speak with the current lawyer. Most of the time, the client will consent to this, but there are times when they will be unwilling to do so. This should end the matter. You should not be willing to take the client on unless they give you that permission. I am hard pressed to think of a reasonable exception to this rule (although there may be some extreme cases where this would not apply). On the other hand, without permission, you cannot call the other lawyer (or anyone for that matter) as confidentiality applies. Ultimately, if the client does not give you permission to speak with current counsel, the matter ends. You cannot tell anyone about your conversation, but you also should not take on the case.
Assuming your client has given you permission to call their current lawyer, you should do so as soon as possible. Let the lawyer know that you got a call from their client, what the issue is, and that you’re calling them as a courtesy to see if they want to try and fix their solicitor/client relationship. Many lawyers may become defensive at the prospect of losing a client so be patient and gentle. Ensure that they know that this is not a personal attack but that you just wanted to make sure they had a fair opportunity to keep their client.
Universally, your fellow counsel will appreciate that you called. I’ve never had a lawyer get mad at me about this. Many of them will give their blessings and essentially say that if the client is happier with you, they don’t mind parting with the file. This will ensure an easy transition of the file from their office to yours.
It is also common for lawyers to want to have the chance to fix the relationship. Encourage this. It is natural for a lawyer to want to call their client and see if they can salvage the file. It is possible that they will be successful in this regard and you will lose the client. But if they are unsuccessful, you may get the call from the client again saying that they were unable to resolve their issues and they definitely want to retain you.
Having acted in a professional and courteous manner, you are now clear to receive the necessary authorization and direction to obtain the file from previous counsel. Be classy. Don’t rub it in their faces. Sometimes reasonable people can differ and just because this client didn’t work out with that lawyer that does not mean that either party is necessarily at fault.
This approach may result in you losing out on potential clients in the short run. What it will do is give you a reputation for being professional and respectful amongst your fellow counsel. This respect will help you gain clients and more work in the long run. If you are seen as an honourable person amongst your peers, you will receive more referrals, more people will want to work with you, and other clients will want to retain you because they see how lawyers hold you in high regard. Also, at some point if one of your clients becomes dissatisfied for any reason (and this happens to all lawyers at some point), rest assured that you will get that same courtesy call from the other lawyers that your client will call.
As a lawyer, your reputation is everything. And no one client is worth being known as the lawyer who steals clients. It is a fact that there will be times when clients want to change their lawyer and there may be good or bad reasons for their desire to do so. But if that is to happen, you must be careful to facilitate this in a fashion that is appropriate and fair to your fellow counsel and to your potential new client.