Last month, I offered you the first four of my seven tips for making a lawyer happy. Here are the final three.
Five: If You Want to Schedule a Call, Please Suggest Some Days and Time. Some nonprofits will drop me an e-mail to ask, “Do you have time for a call?”
It would have been helpful had the correspondent set forth what the topic is about, how urgent the matter is, and, most importantly, a few different days and times when the inquirer would be available for the call.
And please don’t say you are available “anytime” or “all day on Thursday,” when in fact you don’t normally arrive at work until 10 a.m. or you typically leave at 2 p.m. It would be more efficient to say, “I’m available on Tuesday, from 8:30 to 3:30, or on Wednesday, from 10 to 1.”
These tips will reduce the number of emails (or phone calls) that we will need to trade.
Six: Don’t Hold Back on the Facts, Especially the Ugly Facts. Sixty percent of the substantive calls we receive involve employment issues; issues that often are highly fact sensitive.
So, for example, when you call me for advice on how to terminate a long-term poor performer, give me the good, the bad, and especially the ugly facts. Tell me that the employee has had good performance reviews – a potentially bad fact. Tell me that the employee complained two weeks ago about racial harassment or fraudulent bookkeeping practices – a probable ugly fact. Tell me that a new executive director joined the nonprofit nine months ago and has higher performance expectations – a likely good fact.
Also, as a general rule, it is better to not include detailed facts in emails pertaining to personnel issues and other sensitive topics. People are not always careful about what they type and/or might use a poor choice of language to explain the facts. Moreover, emails are sometimes misdirected because the sender picked the wrong name for the e-mail address book – always double check recipients’ names before hitting “send.” At least once a month I receive an email that wasn’t intended for me, often because the intended recipient has the same first or last name as I do.
Seven: Don’t Invite People To Join a Conference Call with a Lawyer Without First Checking with the Lawyer. When one of our volunteer lawyers steps forward to assist a nonprofit, we normally schedule an introductory call to discuss, among other things, the details of the project. On occasion and without providing advance notice, the client contact will invite one or more people to join the call. This can lead to some very awkward moments because sometimes it is not appropriate to have other people involved in the meeting. Here’s why.
The attorney-client privilege is designed to allow a client and a lawyer to have frank discussions about legal issues without having to worry about those discussions becoming discoverable in legal proceedings. Depending upon the circumstances, the privilege may be destroyed if (1) a person without a need to know participates in the discussions; (2) a non-manager is involved in the discussions; and/or (3) one of the participants discloses the legal advice to someone who is outside of management or has no need to know.
Here are two common scenarios. First, Executive Director Jesse calls us and asks for advice regarding a claim of sexual harassment made against Program Manager Dana. We line up Volunteer Lawyer Peyton to work on the project and then set up the introductory call with Jesse and Peyton. Without telling us, Jesse invites Dana to participate. Because Dana has been accused of misconduct, Dana should not be on the call. Dana’s interests and the nonprofit’s interests might be adverse, and Dana’s participation on the call might well destroy the attorney-client privilege. Peyton likely will need time to evaluate whether and to what extent Dana can be involved in future discussions.
Second, Val has designed a new logo for the nonprofit and Jesse wants to make sure the nonprofit owns the rights to the logo. We line up Volunteer Lawyer Chris to work on the project and, without telling us, Jesse invites Val to participate. Val should not be on the call. It is possible that Val’s interests are adverse to the nonprofit—resolution of that issue will depend upon whether Val is an employee, independent contractor, or volunteer, and possibly upon whether Val signed any documents setting forth ownership rights in the logo.
In each situation, it may be necessary to ask the unexpected attendee to drop off the call in order to not risk losing the attorney-client privilege and to allow the volunteer lawyer to provide a candid assessment of the situation to Jesse. Dana and Val might not appreciate being excluded, especially after they have been invited, and, even if they do not feel that way, it is awkward to have to ask someone to exit a meeting.
Thus, before inviting someone to a meeting with a lawyer, ask the lawyer if it is okay to do so.
Christine Michelle Duffy is a senior staff attorney with Pro Bono Partnership. Christine is editor-in-chief and contributing author of the critically acclaimed treatise Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide, and a contributor to the treatise New Jersey Employment Law.
The photo at top is courtesy of Creative Commons/Billy Brown