Rogers & Tartaro On Main Street : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

As a private firm with a civil litigation practice in a mid-sized town, we receive inquiries from potential clients looking for information and wondering if they “have a case.” We are often surprised by the expectations of many of these individuals, including the assumption that a retainer or initial consulting fee will not be charged. 

An attorney’s inventory consists of his/her time, expertise and judgment. An evaluation of a case draws on all three, and fair compensation is appropriate. Consulting and retaining an attorney requires a substantial emotional and financial commitment. 

Since a litigation practice inherently involves helping clients to resolve disputes or controversies, the stress level is always high, even before the first introduction. We found that the following suggestions can help both potential clients and attorneys (no matter what the size of the firm) navigate through the beginning of the process. 

Communication is key. An important element to a successful outcome is the attorney - client relationship and the sharing of knowledge. Be sure you are comfortable with one another. Both parties should be reasonably available.

Be realistic. Both client and attorney need to be sensible about whether a case is viable. Many potential litigants mistakenly believe that hiring a lawyer will easily resolve their problems. Clients should also understand the potential extent of time (and inherent costs) for litigation.

Be wary. Litigation is inherently risky. Any attorney who guarantees a particular result should be avoided. 

Agreements should be formal. The attorney’s terms of representations should be in writing and explained to a client’s understanding and satisfaction. Be honest and make sure each party knows what is expected of the other.

Fee arrangements should be written out in detail and signed by both parties. 

Clients have work to do, too. Clients are responsible for gathering relevant materials in a timely manner.

Experience counts. Make sure that the firm or attorney you are considering is experienced in the area in which you are dealing. 

Be open to a fair settlement. The goal should be a satisfactory, reasonably economical resolution of the dispute. “Go for broke” --  and you just might get there.

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We’vecautioned about e-mail before. The New Jersey Employment Law Blog recently posted an interesting court decision that involved a number of issues, among them whether the attorney-client privilege trumps employer policies.

In the case, Stengart v. Loving Care Agency, Inc., an employee used a company issued laptop to send an email to her attorney through a personal, web-based email account. Could the employer access and review those communications if they’re found on the computer's hard drive? In broader terms, does a company's electronic communications policy trump the attorney-client privilege? In this particular case, no -- but it’s a close call.

We usually would not cover a New Jersey decision because it is not legal precedent for New York and Connecticut. And there is still another level of appeal available to the litigants.

However, what's really interesting is that the e-mails were on a web-based, password protected account. But, to quote the Court’s description of what happened:

"After plaintiff filed suit, the company extracted and created a forensic image of the hard drive from plaintiff's computer."

Isn’t technology great?

We liked two “lessons” articulated by Frank Steinberg of the NJLB, so we quote:

1. For everyone: despite the ruling of this case, never use company-owned computer equipment for any personal communication that you wish to remain confidential. Just don't. Period.

2. For companies: review your electronic communication policy right away. If there are ambiguities in it, clarify them. Courts are going to look not at your intent, but at the reasonable expectations of your employees based upon a variety of plausible readings of the policy.

Attorney Joe Wilson blogged that in a  New York case, an appellate court found that "a 'no personal use' policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of privacy." The court held that the emails were not protected, and were properly discoverable in litigation.

And what about the issue of the increasing number of telecommuters? How much privacy can one expect on a computer used for both personal and business purposes?

I'm sure we'll be hearing about many more cases, in many more jurisdictions.

Image:  Laptop; courtesy of Wikimedia Commons and Jon Sullivan

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