The law firm intake process, step by step, and where the duties attach.

A consultation starts before any fee or engagement letter

Under ABA Model Rule 1.18(a), a prospective client is a person who consults with a lawyer about possibly forming a client-lawyer relationship concerning a matter. The duty attaches without a fee, a retainer or an engagement letter. The consultation itself is enough.

The ABA promulgated Model Rule 1.18 in 2002. In 2012 it replaced "discusses" with "consults" in paragraph (a) and in the Comments, clarifying that a consultation may be written, oral or electronic. The change was not intended to alter the substance of the rule.

Model Rule 1.18(b) bars the lawyer from using or revealing information learned from a prospective client, even when no client-lawyer relationship follows, except as Rule 1.9 would allow for former-client information.

A consultation generally occurs when a lawyer, including through advertising in any medium, specifically requests or invites information about a potential representation without a clear warning. An unsolicited, unilateral communication is not a consultation. Neither is a communication made for the purpose of disqualifying the lawyer.

California's Rule 1.18, approved by the California Supreme Court and effective November 1, 2018, uses different wording. It covers a person who consults a lawyer to retain the lawyer or to secure legal service or advice in the lawyer's professional capacity. California Rule 1.18, Comment [2], cites People v. Gionis (1995) 9 Cal.4th 1196 for the point that a person who discloses information after the lawyer has stated an unwillingness or inability to consult is not a prospective client.

The conflict check belongs before the facts

Model Rule 1.18(c) can disqualify a lawyer from representing a client whose interests are materially adverse to a prospective client in the same or a substantially related matter. The trigger is information that could be significantly harmful to the prospective client in the matter. If the lawyer is disqualified, no lawyer in the firm may knowingly take or continue the matter unless Rule 1.18(d) applies.

ABA Formal Opinion 492, as summarized by ABA Formal Opinion 510, identifies possible examples of disqualifying information. They include views on potential resolution options, personal accounts of relevant events, sensitive personal information and strategies. The inquiry is fact based, and both the length of the communication and the subjects discussed can matter.

To assess a conflict at all, Opinion 510 notes, the lawyer would ordinarily seek the identity of other relevant parties, witnesses and counsel. California's Rule 1.18, Comment [3], goes further and states that a lawyer considering whether to undertake a new matter must limit the initial interview to only such information as reasonably appears necessary for that purpose.

Opinion 510 discusses a case that shows how narrow the gap is. In Skybell Technologies, Inc. v. Ring, Inc., decided in the Central District of California on September 18, 2018, the lawyer did run a conflict check before any substantive communication. After it cleared, the lawyer stopped limiting what was shared and encouraged the potential client to be open. What followed was an hour-long call with the company's chief executive, chief financial officer and two outside counsel covering key patents, infringement theories, validity and prior art, financial position and settlement strategy, then a forty-page proposal, then a three-hour meeting on the same ground. The court disqualified the lawyer's firm from a later adverse representation, noting that the steps taken before the conflict check were not followed by any steps afterward.

Before this piece went out, this desk read it back against the order of questions in a standard firm intake script. The step that kept landing in the wrong place was the conflict check. Name capture and a description of the problem routinely come before anyone runs the parties through the system, which is the exact sequence Opinion 510 and California's Comment [3] are written to prevent.

The first interview cannot become a strategy session

ABA Formal Opinion 510, issued March 20, 2024, says information about whether to represent a prospective client includes whether a conflict exists, whether the lawyer can do the work competently, whether the prospective client seeks assistance in a crime or fraud, whether the client seeks a nonfrivolous goal, and whether the engagement is one the lawyer is willing to accept.

Even then the information sought must be reasonably necessary to make that determination. The lawyer should caution the prospective client at the outset not to volunteer information beyond what the lawyer specifically requests. Opinion 510 says the caution "need not have particular wording." What matters is whether the measures are designed to limit the information received before a lawyer-client relationship is established.

Once a lawyer finds any basis to decline, Opinion 510 says stopping inquiry on all subjects puts the lawyer in the best position to avoid imputation of a conflict. A detailed inquiry may be permissible without being reasonably necessary. A lawyer weighing a contingency matter may investigate deeply to assess the likelihood of recovery, and that is a business decision that carries the imputation risk with it.

Opinion 510 is also explicit that failing to take reasonable measures is not misconduct. The consequence is imputation and disqualification, not discipline. Rule 1.18(d) leaves two ways out: informed consent confirmed in writing from both the affected client and the prospective client, or a screen, available when the lawyer limited the information received, is timely screened and apportioned no part of the fee, and the prospective client is promptly given written notice. Screening is timely when it happens once the firm becomes aware of a potential conflict. Opinion 510 calls a screen for every prospective client an unnecessary and unreasonable burden that Rule 1.18 does not require.

The 2023 amendment put the inquiry in the rule's own text

The ABA House of Delegates adopted revisions to Model Rule 1.16 on August 8, 2023, by a vote of 216 to 102. The amended Rule 1.16(a) opens by requiring that a lawyer inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue it.

New Model Rule 1.16(a)(4) bars the representation, or requires withdrawal, when a client or prospective client seeks to use or persists in using the lawyer's services to commit or further a crime or fraud, despite the discussion the lawyer is required to have about the limits on that assistance. The report accompanying the amendment said the revision adds existing obligations, already detailed in past ethics opinions and other Rules and Comments, to the text of Rule 1.16 rather than imposing new ones.

ABA Formal Opinion 513, issued August 23, 2024, reads the duty as "a reasonable risk-based inquiry," not a perfunctory one and not a dragnet for every fact about every client. The lawyer need not resolve all doubts. If some doubt survives a reasonable inquiry, the lawyer may proceed on the conclusion that doing so is unlikely to involve assisting a crime or fraud. Actual knowledge that the services will be used for that purpose requires declining or withdrawing.

The duty does not stop at intake. Further inquiry is required when the lawyer becomes aware of a change in the facts raising questions about the client's use of the lawyer's services. Rule 1.16, Comment [2], lists the factors that set the depth: the identity of the client, including whether it is a natural person or an entity and, if an entity, its beneficial owners; the lawyer's experience and familiarity with the client; the nature of the requested services; the jurisdictions involved; and the identities of those depositing into or receiving funds from the client trust account.

The engagement letter fixes scope and price

Model Rule 1.5(b) requires the scope of the representation and the basis or rate of the fee and expenses to be communicated to the client, preferably in writing, before or within a reasonable time after the work begins, except where the lawyer regularly represents the client on the same basis. Changes to the fee or expense arrangement must also be communicated.

Note the word "preferably." The Model Rule does not mandate a writing for hourly work. Several jurisdictions do. California Business and Professions Code section 6148 requires a written contract whenever the client's total expense, including fees, will exceed $1,000, stating the basis of compensation, the general nature of the services and the respective responsibilities of attorney and client. Failure to comply with any provision makes the agreement voidable at the client's option, and the attorney is then entitled to collect a reasonable fee. New York's 22 NYCRR Part 1215.1, in effect since March 4, 2002, requires a written letter of engagement before the representation or within a reasonable time after, covering scope, fees, expenses, billing practices and any right to arbitrate a fee dispute under Part 137, and does not apply where the fee is expected to be under $3,000, among other exceptions. The District of Columbia drops the hedge entirely: its Rule 1.5(b) requires the basis or rate of the fee, the scope and the expenses to be communicated in writing when the lawyer has not regularly represented the client.

Contingent fees are stricter everywhere. Model Rule 1.5(c) requires a writing signed by the client, stating the method by which the fee is determined, the percentages accruing on settlement, trial or appeal, the litigation and other expenses deducted from the recovery, and whether those expenses come out before or after the fee is calculated. California section 6147 adds its own required terms for contingency contracts, including a statement that the rate is not set by law and is negotiable, and carries the same consequence: voidable at the plaintiff's option, with a reasonable fee available to the attorney. What goes into the agreement matters beyond the fee itself. A published California opinion covered here in August held that an undisclosed conflict can void a firm's own engagement agreement along with the arbitration clause inside it.

An advance belongs in trust until it is earned

Model Rule 1.15(c), added in 2002, requires legal fees and expenses paid in advance to go into a client trust account, to be withdrawn only as fees are earned or expenses incurred.

ABA Formal Opinion 505, issued May 3, 2023, rejects the idea that labeling an advance "nonrefundable" or "earned upon receipt" changes that. In the opinion's framing the lawyer takes possession, not ownership, of funds that secure payment for services still to be rendered. Unearned advances stay in trust and are refunded if the services are not performed.

A declined matter still needs a notice

The screening route under Model Rule 1.18(d)(2)(ii) depends on prompt written notice to the prospective client. California Rule 1.18, Comment [5], says what that notice has to contain: a general description of the subject matter about which the lawyer was consulted, and the screening procedures employed.

Under California Rule 1.18(d)(2)(i), the screened lawyer may still draw a salary or partnership share established by a prior independent agreement, but may not receive compensation directly tied to the matter from which that lawyer is prohibited.

The Michigan Bar Journal's October 2021 discussion of Michigan's adoption of Rule 1.18 sets out the practices that follow: limit the first communication to the names of the parties, the type of matter and the other basic information a conflict check needs; caution the prospective client once conflicts clear that what they say may not be kept confidential; document the consultation; and, where no representation follows, confirm in writing that the person did not engage the lawyer in the matter.

Lawyers stay responsible for the intake script

Receptionists, intake coordinators, paralegals and answering services handle most first contacts. Model Rule 5.3 requires a partner, and a lawyer with comparable managerial authority in the firm, to make reasonable efforts to ensure the firm has measures in effect giving reasonable assurance that a nonlawyer's conduct is compatible with the professional obligations of the lawyer. A lawyer with direct supervisory authority owes the same duty as to that person.

The Comment to Rule 5.3 notes that supervision should account for the fact that nonlawyers have no legal training and are not subject to professional discipline. Rule 1.18's duties attach to whatever the intake person hears. Rule 5.3 puts the script that person reads on the lawyer. The order and wording of the intake questions is a supervision question, not an administrative one.

Archivar, which publishes The Docket, is an operating system for a law firm. It answers every call 24 hours a day in English and Spanish, runs intake, manages matters and remembers what the firm does, which makes the question of what its intake script asks, and in what order, the same question Rule 5.3 asks of any other intake desk.

Run the conflict check on names before the facts.

Script the caution sentence at the top of the consultation, in whatever words the firm prefers.

Send the non-engagement notice the same way every time, with the subject matter and the screen described in it.