Updated 2013 by Jeffrey S. Gutman
As part of the process for deciding upon the best advocacy strategy, the attorney will have preliminarily assessed the legal and factual bases for the claims that the client wishes to assert. If counsel has determined that litigation is the most appropriate vehicle for advancing these claims, the process of crafting and preparing the lawsuit will begin in earnest. The key to this process is developing the core legal theory or legal theories to be presented to the court and marshaling the factual evidence needed to support these theories.
1.4.A. Developing the Legal Theory
As the client describes the problems to be addressed, the attorney will begin analyzing whether the acts or omissions of concern violate any constitutional principles, laws or regulations, or federally approved plans guiding state action or common law norms. As this analysis unfolds, consider what public or private entities or individuals are arguably responsible for the harm alleged. In exploring which legal claims will be asserted in the lawsuit, it is useful to start with some preliminary legal brainstorming. Make a list of the types of legal protections that may be infringed by the detrimental actions the client describes.
Be creative in developing a comprehensive list of possibilities. Chapter 5 of this Manual describes many potential claims in detail. A helpful approach is to use a hierarchy of legal claims and, then, to apply it to each potential defendant in the case:
- Is there a federal constitutional right or protection that a defendant is violating?
- Is there a state constitutional right or protection that a defendant is violating?
- Is there a federal statute or regulation that a defendant is violating?
- Is there a state or local statutory right or regulation that a defendant is violating?
- Is there a federally approved state/county plan that a defendant is violating?
- Is there a federal, state or local common law right or norm that a defendant is violating?
- Is the defendant engaging in action that violates the federal or state Administrative Procedure Act?
Do not prematurely disregard or discount potential claims until your legal research leads you to conclude that there is no basis for proceeding with such a claim. Assemble and study each statutory and regulatory provision arguably implicated in the issue presented by your client. Consider the plain meaning of these provisions, cross-referenced provisions, exceptions, and any indications of discretion afforded the potential defendant.
Next explore whether other courts have considered the legal claims you may raise, or similar claims. Starting with your jurisdiction, examine relevant opinions from both federal and state courts. However, be aware that reliance solely on computerized research tools will miss unreported cases or cases that have not yet been decided. Research the database of Clearinghouse Review articles.1 Check if the national support centers know of litigation relating to the issue the client is experiencing.2 Consult with attorneys in the relevant practice area to determine whether the potential issue has been litigated and, if not, why not.
In examining what other courts have done, pay particular attention to potential barriers to enforcing the relevant constitutional provision, statute, regulation or plan and which potential defendants have asserted these defenses. Consider who was named as defendants in these cases and what relief was sought. This MANUAL contains extensive discussions of many of these possible limitations, from the case or controversy requirements, to Section 1983, to immunity. If you have identified particularly useful or interesting federal cases, and they are relatively recent, you should be able to access pleadings and briefs filed in the case through PACER, although there is a modest fee for doing so. Counsel in these cases may also be a valuable source of both briefs and advice.
If your client does not need emergency relief, prepare a litigation memo setting out the legal claims, the strength of the claims, and the pros and cons of bringing specific claims. Identify the applicable statutes and regulations and key cases. Drafting the memo will serve as a useful device to refine your thinking, document your research, share with colleagues, convert into pleadings or briefs, and defend, if necessary, against a Rule 11 motion. If you recommend using a new or novel legal claim, it is wise to discuss your research conclusions with a more experienced colleague or an expert in the practice area who may be located outside your program. As the litigation proceeds, revisit this memorandum, but be open to considering other claims or approaches your initial research missed or which have surfaced as a result of discovery or other case developments.
After identifying the best legal claims for your client, meet with the client to explain both the opportunities and any barriers to prevailing on the claims. Provide your assessment as to the advantages and disadvantages of each claim, the potential nature of relief as to each, and, if appropriate, the pros and cons of filing in alternative fora. As discussed above, make sure that the client has a clear understanding of the nature of the claims, the client’s participation in discovery, the time considerations required, and the prospect of relief. If litigation cannot provide all the relief sought by the client, counsel the client on whether this additional relief is available through another form of advocacy. Clients may also have unrealistic expectations about the likelihood and extent of monetary damages, and they may not understand the implications of a monetary recovery on any needs-based public assistance upon which they may rely.3 Discuss and document potential limitations, if not prohibitions, on monetary recoveries.4
Finally, draft a paragraph that will serve as the core theory of the case -- the central defining idea that drives your lawsuit. It should summarize, in a brief and persuasive way, the nature of the wrong committed and relief sought to remedy it. Written in lay, rather than legal terms, this fundamental message may be repeated in the opening paragraph of the complaint, in a press release, or at the beginning of an oral argument. This clearly defined motivating concept behind the lawsuit should remain the touchstone that guides the litigation.
1.4.B. Factual Investigation
Sound legal practice, as well as Rule 11, require counsel to engage in a reasonable factual investigation prior to filing a lawsuit. The first source of information about the case usually will be the client. There are many texts devoted to the art and practice of client interviewing.5 The scope of this Manual does not permit a review of interviewing techniques. Suffice it to say that effective client interviewing is essential to the success of litigation. A sloppy interview can lead to missed facts, omitted legal claims, litigation delays and worse. Young attorneys should conduct their first few client interviews in the presence of a senior colleague prepared to give detailed feedback. If you think a client’s problem will lead to a lawsuit, it is a good idea to have an experienced litigator present for one of the interviews with the client.
1.4.B.1 Your Client
Before filing the complaint, you will likely interview or review the facts with the client for several purposes and on several occasions. At intake, your focus will be on obtaining an overview of the facts and legal issues to see whether the problem meets your program’s priorities, to ascertain the immediacy of the client’s need, and to determine if the client meets income and other program requirements. At your first interview, it is good practice to tell the client that she can speak with you in confidence and that if there are facts the client does not want you to disclose, you will keep them secret. Once eligibility for service has been established, you will need to conduct a detailed interview in order to establish an attorney-client relationship, complete a retainer and learn necessary facts so that you can conduct relevant legal research, investigate further facts, evaluate the merits of the case, and determine your case strategy. This research may well require you to conduct additional interviews. Use these opportunities to explore additional issues of potential legal relevance that your client may not have initially disclosed. Make sure you understand the facts clearly. During the pre-filing interview, review each factual allegation set forth in the complaint with the client to ensure it is complete and accurate. Review all documents that the client may have that are relevant to these factual assertions. These interviews also permit you to gauge the client’s demeanor and credibility. If a client has cognitive problems or suffers from mental illness, for example, you can assess limitations on capacity and determine whether it is possible to proceed. These interviews also offer an opportunity to ask about witnesses and others who may have encountered the same problem faced by your client.
Clients often do not understand why they have to tell their story repeatedly; they may feel that counsel are not listening or understanding them. Thus, being clear about the purpose of the interview and letting clients know early that they will have to tell the same story several times can ease the attorney-client relationship. You may also need to ask questions that upset or offend the client. Use this as an opportunity to educate your client about why the questions are important and relevant. If you establish that you are on the client’s team and are asking the kind of questions the judge or other side is likely to ask, the client will understand that you are trying to help.6
At a pre-filing interview, ask the client to sign a formal written retainer or engagement letter. Have the client sign releases to obtain information from health care providers, housing providers, schools, police departments, and other entities. It is wise to request documents from these third parties early in your factual investigation. Not only is there often delay in receiving them, but also when received, these documents may shed light on additional sources of information or lead you to reevaluate the strength of the client’s claim.
1.4.B.2. Informal Investigation
The goal of a pre-filing factual investigation is twofold. First, you must understand the facts so that you can advocate most effectively. Second, you can obtain evidence for trial or leads on information to request in discovery. Evidentiary constraints should not restrict your informal investigation. Although you should attempt to obtain the most credible form of information available by, for example, notarizing witness statements or locating original documents, obtaining witness statements containing hearsay or unauthenticated documents is acceptable. You can deal with the evidentiary issues should they arise later in the litigation. To do so, however, you will need to keep careful track of when, how, and under what circumstances you received particular information and documents.
The extent of a pre-filing investigation depends on the needs of the case, time restrictions, and your available resources. You need to be flexible and creative in identifying sources of information other than the client. When appropriate, and with the consent of the client, interview the family, associates, friends, the client’s coworkers and other relevant persons who may have information regarding the case. Be mindful of, and comply with, you state's version of Model Rule of Professional Responsibility 4.2. Such individuals may be indispensable sources of information and should be interviewed with an eye to obtaining detailed statements at the interview. After completing the interview and preferably before leaving, prepare a handwritten statement in the first person and in the interviewee’s words, and present it to the individual to read and sign. You can return later with a typed statement to be signed and, if necessary, notarized.7 Whenever possible, the statements should be in declaration or affidavit form so that they may be used to support motions, such as motions for preliminary injunction, or to oppose motions for summary judgment.
Talk to other people affected by the challenged policy or practice. Reach out to organizations likely to be allies and who may know others suffering from similar problems. In a recent case challenging Medicaid co-payments, for example, plaintiffs’ lawyers printed 2” x 3” yellow cards explaining federal Medicaid rights and distributed thousands of them through ally organizations. Since the cards included the legal aid office’s phone number, persons injured by the unlawful practice called for advice. These calls presented a rich source of plaintiffs and facts. Read newspaper and magazine accounts. Examine relevant governmental or academic reports. Students and volunteers can be very helpful in the early stages of investigation. They can take photographs, call similarly situated individuals, and camp out in front of offices to interview people.
The Internet can be a valuable source of information. If your office uses Lexis, Westlaw, or any other online legal or information service, consulting with your service representative about needed information is well worth the time. You may find that some resources are available at no added cost. Some resources targeted to non-attorneys may have information about businesses, corporations, investors, and owners. You can also search dockets to identify other cases in which the parties, attorneys, and judges have been involved. You can access a variety of legal aid list-serves usually by signing up with a national backup center and list-serves sponsored by national attorney associations, such as the National Association of Consumer Advocates and the Association of Trial Lawyers of America. A quick post about a potential defendant may result in networking with an attorney who has handled a case against the same party and is willing to share discovery and strategy with you.
A potentially important source of facts may be those persons arrayed on the other side. These may be staff of a housing authority, a state or county welfare agency, a school or juvenile detention facility, or a private or public employer. The temptation is to ignore such people until after suit is filed, when discovery devices may be employed. Usually, however, investigation should extend to the opposition prior to suit for several reasons.8 The suit may dry up sources of information or create such hostility that impedes cooperation. Information gathered prior to suit will help in drafting pleadings and framing theories. Full investigation prior to suit will deflect motions for sanctions under Rule 11. And, you may obtain information that will lead to a settlement.
Inquiries and investigation, pursued consistent with Rule 4.2, directed toward the opposition will sometimes meet with surprising success. For instance, employees in a state or county agency may question or oppose policies that they enforce. Prior to suit, they may be free and willing to meet and discuss those policies and make information or materials available. Also, before litigation is filed, agencies may have ongoing relations or meetings with clients; during such meetings, relevant information may be disclosed. Similarly, required or optional administrative hearings may offer avenues for obtaining information. Some administrative procedures permit some measure of discovery. Documents or witnesses may be subpoenaed by the hearing officer or the attorney, and there is typically an opportunity to review and copy a client’s file. During the course of the hearing, government employees or hearing officers may be asked about or may disclose information regarding policies and their enforcement. In such cases, it is useful to ensure the hearing is recorded. At the same time, if you are too overt in seeking information to support future litigation, these employees may be less forthcoming and less willing to participate in pre-filing dispute resolution. Openness versus subtlety is a strategy consideration during all stages of litigation.
Most states have sunshine laws or public record laws that provide full or limited access to agency records, including plans, communications and internal reports. Indeed, many such records exist online in an agency website or electronic reading room. On the federal level, there is the Freedom of Information Act (FOIA).9 Apart from these statutory or regulatory provisions, formal requests or letters of inquiry may produce useful information that can help you draft the complaint. At the same time, the absence of responsive information may be potentially valuable. The disclosure of the absence of written policies and procedures governing the termination of benefits may form the basis of claims that this lack of written guidance violated both due process principles and the local administrative procedure act. If a FOIA request is ignored or documents improperly withheld, but are regarded as essential, a suit to enforce the Freedom of Information Act may be needed. Prior to filing suit, it is often effective to send the draft complaint to the agency general counsel and again demand the documents requested.
In addition, many local and state government agencies must periodically report to the sources of their appropriations. Federal and state oversight agencies may similarly audit or analyze the agency. Such reports and audits can be enormously valuable in surfacing information regarding agency policies and critiques of them. Careful advocacy with the monitoring agency or committee may lead it to inquire further and require the monitored agency to prepare additional reports. Once data is obtained, the next step is analyzing it. If you do not have facility with spreadsheets, mapping software, or other programs that can turn numbers into information, you may be able to use a graduate student as a volunteer or short-term consultant. Local universities can be great sources of help for statistical, economic, and sociological analysis. Some professors have been willing to assign legal services case data analysis as a class or homework project.
Likewise, investigation directed toward related disciplines may be useful. A housing case may be helped by literature or expertise from the fields of social work, architecture, or planning. A welfare case may be assisted by persons who teach, write, or study in the social work or public health fields. You may want your client to see a psychologist to evaluate psychological harm. A corrections case may turn upon testimony or research from experts in corrections or criminal justice. As attorneys, we tend to be narrow in training and perspective. Other disciplines may yield theories for litigation, authority, and scholarship as well as expert witnesses.
Pre- or post-filing consultation with experts raises discovery issues.10 Whether information relating to your expert is discoverable will turn largely on whether the expert will testify at trial. If you have merely consulted with an expert in connection with preparing for litigation, information relating to the expert is discoverable only if permitted by Federal Rule of Civil Procedure 35(b) or if extraordinary circumstances are shown.
1.4.B.3. Organizing Factual Information
Organization of the facts and the file should begin as soon as you know that you will commence litigation. Your system should be flexible enough to accommodate growth of the file. The particular way that you organize your file will depend on its potential size, the type of case, your personal style, and your program’s use of computer case management tools.
Whatever organizational system you choose, you must be able to locate quickly information when you need it, and someone else should be able to find the information easily. The latter is a critical piece of responsible lawyering—if someone has to take over the case from you or cover for you in your absence, your client’s interests must not be compromised. Almost all federal litigation is substantial enough to require an index to the file as a whole and an index or master list of evidence. Software is available to help you track documents and evidence.
As you organize and create your file, keep in mind that you are organizing each of the following types of documents:
- Correspondence (including e-mail messages)
- Other court filings, such as motions
- Records of telephone calls
- Interview notes and other informal investigation
- Discovery, including demands, responses, and the documents produced
- Documents that your client supplies or you locate during investigation
- Legal research
- Other research
- Time records
If you are unsure what system will work for you, using an accordion folder for most of these categories is a good place to start. You can then create subdivisions with file folders for each motion, factual topic, or witness. Correspondence and phone logs should be secured into a file to ensure that the chronology of the case development is preserved. Use scanning technology to store facts in your computer.
Whether your program is restricted or not, you must keep accurate time records. The biggest mistake attorneys make in obtaining attorney fees is to under-record time and to underestimate the time that they spent if they do not record it contemporaneously.11 If your adversary accuses you of non-cooperation, ethical violations, or rule violations, accurate and detailed time records ensure that you will be able to document how your case time was spent. Again, many vendors offer timekeeping software.
1.4.C. Impact, Law-Reform, and Test-Case Litigation
Your primary purpose in bringing litigation may be to get your individual client the relief to which she is entitled under the law. Or, you may have a much broader purpose. You may want to ensure that the legal violation does not recur, to compensate past victims of the illegal action, or to change the law. When the outcome of your case will affect large numbers of people, your suit may be considered impact litigation. When the goal of your litigation is to change the law or the way the law is interpreted and applied, your suit may be considered law-reform or test-case litigation.
Bringing this type of litigation requires extra care and attention on several levels. First, exploring uncharted legal territory or seeking to revisit and change existing precedent may implicate Rule 11.12 Particularly diligent and documented legal research is required in such cases, especially because a prompt response to a Rule 12(b)(6) motion is likely to be required. Such cases also require careful client counseling on the reasonable likelihood of success and appeal of adverse decisions. The possibility of an adverse decision requires a careful assessment of whether the potential for such new precedent would worsen the legal landscape of your jurisdiction, thereby impairing the interests of clients, client organizations or other stakeholders. The possibility of appeal requires consideration of the composition of the relevant appellate court. If the court is regarded as hostile to the sort of claim your clients present, it may be best to consider bringing the case or encourage the bringing of the case in another jurisdiction, or pursuing the issue in another forum. The likelihood of appeal also means the lawyer needs to assemble a solid appellate record.
Second, be sensitive to the approach taken to put the case together. In some cases, you will bring test-case or law-reform litigation based on an issue that a client brings into your office; your client seeks a solution to his individual problem, but the resolution of the case will have broad impact. In other cases, your program may identify an issue worthy of litigation, but have no client to serve as the plaintiff. Such clients may not have yet been identified, they may be hesitant to serve as plaintiffs, or their individual claims have been mooted as a result of successful administrative advocacy. If a case is certified as a class action under Rule 23, class representatives may need to be prepared to compromise their individual goals in developing case strategy or reaching a settlement, and this must be discussed with potential plaintiffs in advance of filing and seeking class certification.
The process of identifying potential clients and plaintiffs may implicate restrictions on soliciting clients, such as those contained in Model Rule of Professional Conduct 7.3.13 Nonetheless, lawyers may inform potential clients of their rights.14 Nonprofit organizations may solicit potential litigants to further their public policy goals.15 By working with community groups you can generally avoid ethical or legal services restriction barriers to locating affected individuals and potential plaintiffs.16 Nonetheless, care should be taken. It is wise to consult your jurisdiction’s ethical rules and any state bar formal or informal opinions on issues relating to solicitation of clients.
Even when it is difficult to identify potential plaintiffs to challenge a particular law or practice, the legal aid lawyer should not forget the maxim “bad facts make bad law.” Particularly when advancing a difficult or novel legal claim, unsympathetic clients or those perceived to be undeserving can reduce the chances of success. A classic illustration of this principle occurred in Lassiter v. North Carolina Department of Social Services.17 Lassiter presented the question of whether due process required providing counsel to an indigent parent in a proceeding to terminate parental rights. Given the number of termination proceedings that take place in states that did not provide counsel, selecting a client who appeared to be a victim of an uncaring bureaucracy would have been possible. Instead, the petitioner chosen to present the question was a convicted murderer who had no real hope of release from prison before her child became an adult and who had been provided counsel in an earlier proceeding. The Supreme Court rejected her claim in a 5-to-4 decision; one member of the majority concurred, conceding that the question was extremely close. The answer might have been different if a more sympathetic client had been chosen.18
In contrast, when attorneys sought to challenge the provisions of the Food Stamp Act enacted to eliminate unrelated members of a household from food stamp eligibility, they recognized the importance of a sympathetic client. The lawyers chose as the lead plaintiff Jacinta Moreno, a farmworker forced by economic circumstances to share housing with nonrelatives. The choice of plaintiff shifted the focus of the litigation from the propriety of seeking to eliminate hippies’ eligibility for food stamps to the unanticipated effect of the provision on the neediest potential beneficiaries. The plaintiff prevailed in the Supreme Court by a 5-to-4 margin.19 Similarly, in the Lightfoot v. District of Columbia case, the lawyers recognized that pre-termination process does not depend on the underlying merits of the continued claim for benefits. Nonetheless, they attempted to select plaintiffs who were substantively deserving of these benefits and who suffered demonstrated harm when they were terminated. In addition, in selecting a plaintiff who had not yet been terminated, but who had a stake in the content of future termination rules, the plaintiffs’ lawyers selected a plaintiff who had been terminated in the past and had years of difficult experiences with the defendant agency.
Third, coordination with other legal aid programs, state and national backup centers, and other organizations concerned with the issue is important when you engage in test-case or law-reform litigation. By definition, your case may affect a large number of people or may change the law. Although you may be sure that your outcome is desired and your strategy a good one, you should ensure that you fully understand the implications of your litigation and that your approach does not conflict with other reform projects underway. Similarly, in large pieces of litigation, you may be working with multiple co-counsel, amici, and clients. You must coordinate and plan among co-counsel and others. You should have written co-counseling agreements outlining who will be the lead counsel, what their duties will be, who has authority to make decisions, how regularly you will communicate through conference calls or meetings for strategy discussions and updates, who is responsible for covering litigation costs, and who is responsible for any attorney fee aspects of the litigation.
As noted above, legal services restriction regulations do not prevent the legal services attorney from engaging in law-reform or test-case litigation. The regulations restrict certain activities and may alter strategic choices. However, the creative attorney can still change and improve the system, the laws, the rules, and the practices that affect clients’ lives. If you not only win your case, but also insist on a broader solution, the eviction case on which you go to court next week may be the vehicle for changing the way that the housing authority gives notices to all its residents. You may file a case to obtain unemployment benefits for your client and change the definition of misconduct in your state. The form of the litigation may be different, but the commitment, intelligence, creativity, and zeal of legal aid attorneys are needed to provide our clients with meaningful and effective representation.
1.4.D. Pre-filing Negotiation and Offers of Settlement
Most cases are resolved through settlement rather than through trial or judicial determination. Failing to consider and prepare for settlement possibilities early in your planning is foolish. You must prepare your client for the settlement process during one of your initial meetings. The client must understand the ultimate goal of the litigation, the risks in achieving it, and that there may be very good reasons to be pleased with less than what you are seeking in the complaint. You should explain to the client that what constitutes an acceptable settlement will change over time. As new evidence is evaluated, the investment in the case increases, the assessment of risks changes, and the strategy of the defendants and actions they take may undermine or support claims.
Sometimes an attempt to settle a case before filing litigation can be very effective.20 A demand letter accompanied by a draft complaint will get attention. If time permits, you may also include a draft order or consent decree. A settlement before filing is attractive to defendants who do not want negative publicity or a record of involvement in litigation. It can be useful when the defendant wants to comply with the law but you have been unsuccessful in getting the issue to the attention of the person with the authority to make the change. A pre-filing attempt to settle can be a chance to obtain informal discovery as you ascertain the defendant’s position and reasons for it. The disadvantages of a pre-filing attempt to settle are the loss of surprise, the possibility of the defendant rendering your claims moot, and the delay necessary to engage in pre-filing negotiations. If these efforts result in the prospect of useful negotiations, protect your client's interest by drafting and entering into a tolling agreement to toll the statute of limitations during these talks.
Even where the adverse action seems to be final and from the highest authority, a formal request for settlement before litigation may be effective if it sets out the facts, clearly explains legal claims and how the defendant is violating the law, states with precision what you want the other side to do, and sets a clear deadline by which to take action. If you state that your client will sue if a settlement is not reached by a date certain, you must be prepared to follow through. If you make such a threat and do not carry it out, you will lose your credibility and adversely affect future negotiating strength.
A demand letter should be polite but firm. It should make clear the strength of the case and be suitable to attach as an exhibit to the complaint or a motion. The objective is to produce a letter that, when read by a judge, will evoke incredulity at the recipient’s noncompliance. When time does not permit writing such a letter, a telephone call can accomplish the same result. Confirm the call later by letter. Even where the adverse action is taken deliberately, the demand letter—especially if coupled with a draft complaint—will send the message that your client has a capable, determined, and knowledgeable attorney who is about to sue. This may initiate the involvement of your opposition’s counsel, who may be able to talk sense into your opponent or urge settlement efforts. At the least, the letter and documents provided can serve as a starting point for post-filing settlement discussions.
Updated 2013 by Jeffrey S. Gutman
- 1. Clearinghouse Review: Journal of Poverty Law & Policy is published by the Sargent Shriver National Center on Poverty Law. Its website is www.povertylaw.org.
- 2. A list and contact information for the national support centers appears on the inside of the back cover of each Clearinghouse Review.
- 3. Note that for any given benefit program, income and asset limits, treatment of lump sums, and obligations of program beneficiaries to report and/or assign pending litigation recoveries, and the ability of the provider of benefits to claim a portion of recoveries, is typically governed by state requirements, except the SSI program, which is governed by federal law. Analysis of the potential effect of a recovery and strategies to protect client access to needed assistance should be considered in advance of filing as it may affect client decision-making regarding the litigation and inform the determination of the relief sought.
- 4. See Chapter 8.3 and Chapter 9.1 of this Manual for discussions on damages.
- 5. See, e.g., G. Nicholas Herman & Jean M. Cary, A Practical Approach to Client Interviewing, Counseling, and Decision-Making (2009); David A. Binder, Susan C. Price & Paul R. Tremblay, Legal Interviewing and Counseling: A Client Centered Approach (2004); Robert M. Bastress & Joseph D. Harbough, Interviewing, Counseling, and Negotiating: Skills for Effective Representation (1990).
- 6. Throughout the case, the attorney-client relationship must be supported by clear and regular communication. Regular, direct and explicit communication and information will keep you and the client working together as a productive team. Even if you have no “news” to share, an update call or letter just to let the client know the case status is sound legal practice. Confirming letters to the client, in addition to your case log or notes, can help the client keep track of information. Needless to say, they also help you if the client later denies facts told to you or claims that you mishandled the case; nonetheless, the main purpose of the letters is to give information and to reinforce a working relationship.
- 7. In federal practice, notarization is not needed; instead of affidavits, one may use declarations made under penalty of perjury. See 28 U.S.C. § 1746 .
- 8. See Chapter 6.1 of this MANUAL for a discussion of the ethical issues governing such interviews.
- 9. Freedom of Information Act, 5 U.S.C. §§ 552 et seq.
- 10. See Chapter 6.1 of this MANUAL.
- 11. On attorney fees, see Chapter 9.4 of this MANUAL.
- 12. Chapter 4.2 of this MANUAL discusses Federal Rule of Civil Procedure 11 and Rule 11(b)(2) in particular.
- 13. Model Rule of Professional Conduct 7.3 generally prohibits solicitation of clients when a “significant” motivation for doing so is pecuniary gain.
- 14. “[A] State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.” Shapero v. Kentucky Bar Association , 486 U.S. 466, 468 (1988).
- 15. In re Primus, 436 U.S. 412 , 443-46(1978) (ACLU was such a nonprofit).
- 16. 45 C.F.R. § 1638.
- 17. Lassiter v. Department of Social Services, 452 U.S. 18 (1981).
- 18. Lassiter is not unique. Both Wyman v. James, 400 U.S. 309 (1971), and Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974), were made more difficult by unappealing clients.
- 19. U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
- 20. Legal services restriction regulations require, absent narrow exceptions, that certain disclosures be made regarding your client’s identity to defendants in settlement discussions, and to LSC after litigation is filed, and that certain records be kept before filing the litigation. Your client needs to be aware of, and consent to, such disclosures. See 45 C.F.R. §§ 1636, 1644.