What belongs on a law firm client intake form, and the rule behind each field.

Oregon and Florida bar libraries supply drafts, not approved instruments

The Oregon State Bar Professional Liability Fund publishes practice forms, checklists and sample letters "available as a free service" of the Professional Liability Fund. Its intake-related documents include the "New Client Information Sheet," the "New Client Information Sheet with Disclaimer," the "Declined Prospective Client Information Sheet," "Nonengagement Letters," "Disengagement Letters," "Guidelines for Lawyers Drafting Engagement Letters," and "Sample Engagement Letters and Fee Agreements for Lawyers." The library also carries parallel engagement-letter guidance and samples for licensed paralegals.

The permission is narrow. All copyrights are reserved, the page states, except that permission is granted for Oregon lawyers to use and modify the documents in their own practices, and the information may not be republished, sold, or used in any other form without the written consent of the PLF. The grant runs to Oregon lawyers. Republishing or selling the forms requires written consent.

The Florida Bar operates a second source through LegalFuel. Its Document Library is "curated by the Practice Resource Center of The Florida Bar" and provided at no charge. Its categories include "Client Intake Forms," "Client Communications Forms and Letters," "Client Fee Agreements and Letters of Representation," "Financial Forms" and "Trust Accounting Forms."

The Florida library states that no form on the site has been adopted as an official form of The Florida Bar. The Bar and the creators of the forms also make no warranties concerning their use. A bar-published template is a starting draft under a stated license, not an approved instrument, and not automatically portable to another state's firm.

In reviewing this piece before it shipped, the desk pulled the PLF's intake-related entries and lined them up. The set holds more documents for the matters a firm turns away or ends, including the declined prospective client sheet, nonengagement letters and disengagement letters, than for the matters it takes on, which have the two new client information sheets. An intake packet containing only an intake sheet is missing the larger half of the published set.

The first fields should identify the conflict

Under ABA Model Rule 1.18(a), a prospective client is a person who consults with a lawyer about possibly forming a client-lawyer relationship concerning a matter. The duty attaches without a fee, a retainer or an engagement letter. Rule 1.18(b) bars the lawyer from using or revealing information learned from that prospective client, even when no client-lawyer relationship follows.

That makes the client's name, the adverse parties, related entities, other counsel and known witnesses the first fields that do conflicts work. They belong ahead of the fields that invite the story of the matter. The intake sheet collects the information to which the rule then attaches. This publication previously covered the sequence of duties across an intake and the rules that attach at each step.

HIPAA makes a records authorization a separate document

In a medical-records matter, a HIPAA authorization is governed by 45 CFR 164.508. It is separate from the intake sheet, and its contents are prescribed by regulation rather than by preference.

Paragraph (c)(1) requires six core elements: a specific and meaningful description of the information to be used or disclosed; the person or class of persons authorized to make the disclosure; the person or class of persons to whom the disclosure may be made; each purpose of the requested use or disclosure; an expiration date or expiration event tied to the individual or the purpose; and the individual's signature and the date.

Paragraph (c)(2) requires statements about the individual's right to revoke in writing and the exceptions to it, whether treatment, payment, enrollment or eligibility for benefits may be conditioned on signing, and the potential for the recipient to redisclose the information so that it is no longer protected. Paragraph (c)(4) requires the covered entity seeking the authorization to give the individual a copy of the signed authorization.

Paragraph (b)(2) identifies the defects that make an authorization invalid. They include a passed expiration date or a known expiration event, an authorization not filled out completely with respect to a required element, a revocation known to the covered entity, and material information known to be false. A blank line is therefore not cosmetic. It can give the records custodian grounds to treat the authorization as invalid, which comes back as a delay rather than as a notice.

Online consent travels with the electronic intake form

Under the federal E-SIGN Act, 15 U.S.C. 7001(a)(1), a signature, contract or other record relating to a transaction in or affecting interstate or foreign commerce may not be denied legal effect, validity or enforceability solely because it is in electronic form. Under section 7001(a)(2), a contract may not be denied legal effect solely because an electronic signature or electronic record was used in its formation.

Section 7001(c)(1) adds conditions where a statute requires information to be provided to a consumer in writing. The consumer must affirmatively consent and must not have withdrawn that consent. Before consenting, the consumer must receive a clear and conspicuous statement of the right to have the record on paper, the right to withdraw consent and any consequences or fees, the scope of the consent, the procedures for withdrawing it and updating contact information, and how to obtain a paper copy and any fee for one. The consumer must also receive a statement of the hardware and software requirements, and must consent, or confirm consent, electronically in a manner that reasonably demonstrates that the consumer can access the information in the form that will be used.

If those hardware or software requirements later change in a way that creates a material risk that the consumer cannot access or retain a subsequent record, the provider must notify the consumer and comply again. On the page that carries an online intake form, the consent mechanics are part of what makes the electronic record do the work the paper record did.

Social Security numbers and accessibility change the form's design

California Civil Code section 1798.85(a) bars publicly posting or displaying an individual's Social Security number, printing it on any card required to access products or services, requiring an individual to transmit it over the internet unless the connection is secure or the number is encrypted, requiring its use to access an internet website unless a password, unique personal identification number or other authentication device is also required, and printing it on mailed material unless state or federal law requires it. The statute permits inclusion in applications and forms sent by mail, including documents sent as part of an application or enrollment process. For an online intake form, the provision that bites is the one about an unencrypted field over an insecure connection.

ABA Model Rule 1.6(c), added in 2012, requires a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. ABA Formal Opinion 477R, "Securing Communication of Protected Client Information," issued in May 2017, treats that duty as fact-specific rather than governed by a single standard. It says special security precautions may be required when an agreement with the client or the law requires them, or when the nature of the information calls for a higher degree of security.

Accessibility raises a separate question. Under 42 U.S.C. 12181(7)(F), the Americans with Disabilities Act lists the "office of an accountant or lawyer" among places of public accommodation. Under 28 CFR 36.303(b)(2), auxiliary aids and services for individuals with vision impairments include qualified readers, taped texts, audio recordings, brailled materials and displays, screen reader software, magnification software, optical readers, large print materials and accessible electronic and information technology. Under 28 CFR 36.303(c)(1)(ii), the office should consult the individual about what is needed, while the final decision on the measure rests with the public accommodation, provided the method chosen results in effective communication.

A scanned image that cannot be read by software, or a web form a screen reader cannot traverse, presents an accessibility question for the office as a place of public accommodation, not only a design question.

The intake questions do not change with the medium

Archivar, which publishes The Docket, is an operating system for a law firm. It answers every call day or night, serves callers in English and Spanish out of the box with more languages available on higher tiers, runs intake, manages matters and remembers what the firm does. The fields an intake form asks for, and the order in which it asks them, are the same questions whether the form is printed, typed at a counter or filled in on a screen.

Use the bar library documents as drafts, inside the license each one states.

Put the conflict-identifying fields ahead of the narrative ones, and keep the HIPAA authorization a separate document with every required element filled in.

For an online form, put the E-SIGN consent disclosures on the same page, secure any Social Security number field, and check that a screen reader can get through it.