QUESTION:
What does an attorney gain by keeping all the records of the auto injury/medical records before signing a retainer’s agreement? – I went to see an Auto injury attorney and he wanted to keep all the prior third-party insurance letters and all the records including medical records for this accident, which he wants to keep for a couple of days before making up his mind about taking this case or not. What are the disadvantages for me? Can this attorney scan my documents and save them on his computer? These records also include my confidential medical information. Will he be able to use these documents to sabotage my case in any way or form?
ANSWER:
The significance of counsel’s first consultation with a personal injury claimant must not be underestimated. If properly conducted, this initial meeting should: Provide the foundational information from which the prospective client decides whether to retain an attorney and from which the latter would decide whether this is a case he/she may ethically and legally accept, and whether it is a case he/she otherwise wants to accept. At the same time, the consultation should enable counsel to make a preliminary assessment of the prospective client’s credibility. His or her probable character as a witness is important to the decision to accept or reject the case; so also is counsel’s ability (or inability) to trust the claimant. It should also provide for sufficient information to launch a competent investigation and begin formulating the parameters of a potential lawsuit. It is up to counsel to steer the first meeting in the proper direction; the basic goal is to elicit the essential facts and then to explore the possible courses of action. The principle of client trust and confidence applies equally to plaintiff and defense counsel. Unless prospective clients feel that they can trust a counsel, they will be reluctant to reveal their full story particularly the unfavorable details. To encourage candor, the counsel should advise the prospective client that his or her consultations with such counsel are privileged communications. Disclosure to the adversaries cannot be compelled even if the counsel is not ultimately retained to handle the matter. [Sullivan v. Super.Ct. (1972)].
Attorney and client stand in a fiduciary (confidential) relationship. As such, business transactions between them are subject to a statutory presumption of attorney undue influence. In a lawsuit by the client seeking to avoid the transaction (or in a state bar disciplinary proceeding against the attorney), the attorney thushas the burden of proving the deal was fair and just and the client was fully advised. [Beery v. State Bar (1987) 43 C3d 802, 812–813, 239 CR 121, 126]. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.
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