COURT TECHNOLOGY AND TRIAL PRESENTATION

The Court Technology and Trial Presentation Blawg features articles, reviews and news of interest to lawyers and other legal professionals. This blog is published by Ted Brooks, a Trial Presentation and Legal Technology Consultant, Author and Speaker. Ted's trial experience includes the Los Angeles Dodgers McCourt divorce trial (with David Boies), People v. Robert Blake murder trial (with M. Gerald Schwartzbach), and a large number of high profile, high value and complex civil matters.

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Monday, September 13, 2010

Ethics: Whose Client Is It?



One topic addressed during the final panel session of the recent NCRA Trial Presentation and Certified Legal Video Specialist programs in Phoenix was how to handle it when someone sends you a referral to their client, and that client later asks you to do additional work for them.

It was suggested that the referring firm should be contacted for any subsequent work on that matter. In other words, if that client were to contact you to perform additional work directly related to that case, you should notify the referring firm, and they should then have the option to do as they wish with their client regarding any additional work. Of course, if the client requests you specifically, then that request should be respected and honored if possible by the referring firm as well. With respect to trial presentation services, I would certainly agree with this.

Now, where I have trouble is the example which was shared in which the client then later contacts you directly about a different, unrelated matter. For videographers, apparently the door is open at that point to accept work directly from the client without notifying or involving the original referring firm. If the client was local and the referring firm was not, it was then fair game to take that client from them. I’m not so sure that this is really a good way to do business and maintain a healthy relationship with the referring firm – regardless of location and proximity.

It may be because there are a larger number of videographers throughout the country, coupled with the fact that the client-vendor relationship is rather brief, but I can tell you that this would never fly in the trial presentation community. You would have only one opportunity to steal a client, and you would probably never again get called for additional work from the referring firm. I don’t know how small and close the videographer community really is, but I can tell you that most everyone in the trial presentation business knows who most everyone else is, and whether they have ever taken someone else’s client. In my opinion, this would apply to marketing to co-counsel or even opposing counsel while working on behalf of a referring firm. As a subcontractor, you are not there to represent yourself, but rather the prime contactor who referred you in the first place.

Although the client-vendor relationship is a stronger factor in trial presentation, I would suggest that it may be a good idea for videographers to consider whose client it was in the first place, and whether snapping up a little extra work now could cost you much more later. If there is a question as to whether it is the right thing to do, the safe and honorable thing to do would be to contact the referring firm. Although you may be losing out on a few quick dollars in doing so, the long-term effect can be far more valuable. We are all only as good as our reputation.

Ted Brooks, President
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3 comments:

  1. Three observatitons:
    1) The deposition market is much more transactional than the trial consulting market. So I think we agree, new matters would be handled differently than repeat trial opportunities.

    2)One comment from the floor during this live discussion hit the nail on the head, "communication". A simple call between those involved is a great step to finding a mutually acceptable solution.

    3) Pitching your client to call me direct should be viewed in a much different light(very negative), than a client that seeks me out some time in the distant future on an unrelated matter. (Refer to comment two above in this case.)

    FYI: If I refer a sub to a trial and that sub actively pitches the client to go direct, that sub is never going to get a call from me again. It shows a real flaw in understanding of the subcontractor relationship. (see: golden rule, Karma, etc.)

    Brian Clune

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  2. I have received two types of referrals. In the first situation, the client calls me directly and says "another vendor referred me to you." In my opinion I owe nothing more than a thank you to the first vendor. In the second situation, I get a call from a vendor I know asking me to take care of a client for them. In this case I owe the referring vendor a duty of loyalty that includes a scrupulous promise not to market my services in any way to the client and to never compare myself or my firm to the referring vendor in a way that could be thought of as unflattering to the referring vendor.

    I've taken a few cases this way and have referred several cases out to others with this understanding. Generally this has worked well although I know I've lost a couple of clients this way to vendors who are good and whom the client likes. I guess those are the breaks. Unfortunately I've been disappointed at least once when the person I gave the reference to started sending gifts and marketing materials to my client and continues to thus day. My client of twelve years thinks it is funny but I certainly don't. As Ted says, it is a matter of honor.

    I absolutely refuse to subcontract whether I'm the contractor or the sub. I dint want to be in the middle of my client and another vendor and I don't want another vendor between me and the client. It simply won't work well.

    If the client calls back with a new case, the ethical questions are subtle and complex. Of course the client has a right to go to whomever he wishes to use. I have a right to work for anyone who seeks me out. BUT, I also owe a duty of honor to the original referring vendor. In this case I would ask the client if the original vendor was unable to take the case as a reminder to them of how we came to meet. I would also feel a duty to contact the original vendor and reassure them that I am not a poacher. In the end, though, I would probably take the case because the client asked me to.

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  3. I have a simple arrangement with most of the individual court reporters that book me on a job for their client(s);

    1) I handle the billing of the video portion directly to the client. This way, the court reporter who booked me is not "fronting" my fee and then waiting to finish the transcript to bill the client for both then pay me (minus their discount).

    2) I pay the court reporter (person or firm) their portion directly as a "booking fee" if you like, similar to other industries. And I do this monthly, it's automatic.

    3) If I get booked directly by one of these clients and the client was originated by a reporter/firm, I do the job, and automatically send them their portion. Sometimes, they don't know a job ever happened until it's done because the client may have used a different reporter. It's a "nice surprise" for them.

    4) If it's a large reporting firm that does the booking and they want me to bill and deliver the video to them instead, (a subcontractor) then I do the job, and the client doesn't know that I'm not from that firm. If the client wants to know who I am, I hand them the reporting firm's card - never my own.

    Everyone is happy.

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