Initial Client Contact
You may decide not to open a file on a matter if the first contact is made by telephone because the caller may never become a client. However, you should maintain a general file for one-off calls and meetings and keep notes of those conversations. Maintain a separate contact sheet (to be attached to the inside left of the general file), listing the client’s name, date of contact and conflicts information about the opposing party (a sample is attached at Appendix A). If the caller becomes a client, you can move your notes from the general file to the client’s file. It is generally advisable to provide a letter or email to the caller or person with whom you have met, who does not retain you, to confirm the nature of the discussion, the advice given or not given, plus a clear statement that you are not that person’s lawyer until formally retained. Numbering your notes to match the client’s number on the contact sheet will let you retrieve notes from the general file quickly.
Following this practice will help you when the individual calls you back some time later and expects you to remember the telephone conversation. It also helps prevent conflicts in the event the individual’s spouse call you for advice.
If you are also a mediator, ensure that you also make a note of whether you were having a discussion with the client in your role as mediator or whether you were giving legal advice. Once you give legal advice, you are no longer neutral and cannot later act as a mediator.
Always be alert for clients who are depressed as they may agree to terms in a separation agreement that they will regret later.
The First Meeting
The first meeting with a family law client will have many important aspects, not the least of which is ascertaining your client’s mental competency. Never agree to represent a client who appears to be mentally incompetent without having that issue addressed by a mental health practitioner. If the client is in fact incompetent, he or she may be unable to give you instructions and a litigation guardian may have to be appointed. Do not underestimate the importance of this issue.
Discuss your fees before the first meeting. Some clients expect to obtain the first consultation without charge. If you do provide free consultations, set out the limits of that consultation at the outset. If you charge for the first meeting, be clear about your hourly rate and that the client will be charged for your time at the first meeting.
The Family Law Act, at s. 8, requires lawyers to screen for family violence and then based on that screening, to advise clients as to the advisability of various methods of dispute resolution. You must ensure that you are familiar with the various methods of dispute resolution and you have an obligation to explain those methods to your client.
It is useful to use a checklist to ensure you have covered the following issues:
- the existence of previous agreements and previous orders;
- the presence of jurisdictional issues which may impact on the jurisdiction of British Columbia courts;
- any limitation periods, especially those on the cusp of expiry;
- the need to involve third parties in any litigation; and
- the presence of family violence.
Most first meetings will cover these issues:
- child custody, residence, and access (under the Divorce Act);
- parenting time, guardianship, and contact to children (under the Family Law Act)
- child support and spousal support;
- division of property and debt, for married and unmarried spouses;
- divorce, for married couples; and
- the means of resolving the client’s legal issues, including negotiation, mediation, collaborative processes, arbitration and litigation.
Using a standard questionnaire will help you be confident and comfortable when meeting a new client.
Review the Law Society Practice Support Checklist. Modify it to allow you to “fill in the blanks” as you interview your new client. A sample “fill in the blank” questionnaire is set out at Appendix B. It is good practice to provide the questionnaire to your client in advance of the meeting and ask him or her to return it to you by email. This allows you the time to consider some of the issues before the client comes to meet with you in person. This saves time and allows you to consult resources in advance to ensure you are providing appropriate advice.
The initial meeting is an opportunity for you to advise your client of various ways to approach his or her situation. The options can range from your client coming to an agreement with his or her partner directly and then having it turned into a formal agreement, negotiations with the assistance of counsel (whether collaborative or general), mediation, arbitration, or litigation. Most clients prefer to avoid the emotional and financial expense of court proceedings and appreciate learning about the other available options.
Before the meeting ends, confirm whether you have been retained or whether the first meeting was simply for advice purposes. If you have been retained, open a new file and send out your initial letter as soon as possible. If the meeting was simply for advice, ensure that your notes and account, if any, indicate that this was a meeting for legal advice only, and consider sending a follow-up letter to the client summarizing the advice given and confirming that you are not retained.
When you will be retained, you will usually conclude a first meeting with a list of tasks for the client to complete. If they have not already been provided at the first meeting, you will ask your client to obtain and provide the following classes of documents:
- copies of all pleadings and orders if an action has been started, plus copies of all pleadings and orders from any previous family law actions;
- copies of the client’s file from previous counsel, if applicable;
- copies of any relevant agreements;
- the client’s three recent income tax returns with all schedules attached and the three notices of assessment that were issued for those tax years;
- recent RRSP/RRIF/LIF/LIRA account statements;
- bank statements and credit card statements for the last three years;
- real property assessments for all properties in issue, including BC Assessments;
- life insurance policies and cash surrender values, if any;
- details of beneficiaries for life insurance, RRSPs and RRIFs;
- recent annual pension statements of all pension plans from current and previous employment and pension plan booklets;
- documents relating to advances/gifts/loans from parents or relatives, and
- details of monies in RESPs for children.
Whether the client is a private paying client or a legal aid referral from the Legal Services Society, it is very important to discuss the terms of your retainer, hourly rate, any limits of work to be done and required retainer funds. Follow up by sending the client a written agreement or letter setting out the terms of the retainer. Some clients may be eager to sign the retainer right away. However, they should be encouraged to take it home, review it, and call back with any questions. Make sure you receive your retainer before beginning work on the file. It is far better to identify at an early stage those clients who cannot or will not pay for your services rather than doing thousands of dollars of work and then finding out that you have a substantial receivable that might never be paid.
It is particularly important to explain to your legal aid clients what limits are placed on your services by the Legal Services Society tariff guidelines. They will be able to make better use of your time and services if they know what services you are able to provide. Your retainer letter should set out reasonable expectations for returning calls, billing, and other communication issues. A sample retainer letter is set out at Appendix C and the new form of retainer letter that reflects the Code of Professional Conduct for BC can be found on the Law Society Website.