A first meeting with an injury attorney is a consultation, and the North Carolina ethics rules protect the person in it before any agreement is signed. The papers worth bringing come from different places, and each one has its own rule behind it. This post covers the order of the visit, what Rule 1.18 and Rule 1.6 protect, where the crash report and exchange details come from, how to get medical records and bills, and the one paper to leave unsigned until we meet.
The first meeting comes after a phone or video call
The first meeting with me is an in-person meeting where you are, and it follows a first conversation by phone or video. Wherever you are in North Carolina, I can come to you. The full order is on the page about how a visit works.
The phone or video call, the first contact
First contact is by phone or video, and the in-person meeting comes after it.
The in-person meeting, where the decision gets made
I meet you in person where you are, and whether we work together is decided there.
Rule 1.18(a) of the North Carolina Rules of Professional Conduct defines a prospective client as a person who consults with an attorney about the possibility of forming an attorney-client relationship. That describes the person on the call and at the meeting, before anyone is hired.
Comment [1] to Rule 1.18 says an attorney's consultations with a prospective client usually leave both the prospective client and the attorney free, and sometimes required, to proceed no further. Meeting me in person does not commit you to hire me.
What stays confidential at a first meeting before anyone is hired?
Under Rule 1.18(b) of the North Carolina Rules of Professional Conduct, an attorney who learns information from a prospective client cannot use or reveal it, even when no attorney-client relationship follows. The rule's own exception is what Rule 1.9 would permit for a former client's information. What you tell me at the first meeting stays protected even if you decide not to hire me.
What you tell me at the first meeting stays protected even if you decide not to hire me.
Comment [3] to Rule 1.18 says this duty exists regardless of how brief the initial conference is. A short meeting where you are carries the same duty as a long one.
Papers you hand over at the first meeting
Comment [1] to Rule 1.18 recognizes that prospective clients, like clients, may disclose information to an attorney and place documents or other property in the attorney's custody. Comment [9] points to Rule 1.15 for an attorney's duties when a prospective client entrusts papers to the attorney's care.
Exception. Comment [2] to Rule 1.18 says a consultation does not occur when a person sends information in response to advertising that only describes an attorney's education, experience, practice areas and contact information, or that provides legal information of general interest. The same comment says a consultation is likely when an attorney's advertising specifically invites information about a potential representation without clear warnings that limit the attorney's obligations.
Rule 1.6 after hiring, and why it reaches past privilege
Rule 1.6(a) of the North Carolina Rules of Professional Conduct bars an attorney from revealing information acquired during the professional relationship with a client. The exceptions are the client's informed consent, a disclosure impliedly authorized to carry out the representation, and the disclosures paragraph (b) permits.
Comment [3] to Rule 1.6 separates the ethics rule of confidentiality from the attorney-client privilege and the work product doctrine. The privilege and the work product doctrine apply in judicial and other proceedings where an attorney is called as a witness or required to produce evidence about a client. The confidentiality rule applies in situations other than those where evidence is sought from the attorney through compulsion of law.
The same comment says the confidentiality rule covers not only what a client says in confidence but all information acquired during the representation, whatever its source.
| Question | Rule 1.18, before anyone is hired | Rule 1.6, after you hire an attorney |
|---|---|---|
| Who it protects | A prospective client, a person consulting about a possible attorney-client relationship | A client |
| What it covers | Information the attorney learned from the prospective client | Information acquired during the professional relationship, whatever its source |
| What the attorney cannot do | Use or reveal it, except as Rule 1.9 would permit for a former client | Reveal it without informed consent, implied authorization or a paragraph (b) exception |
| Whether hiring matters | Applies even when no attorney-client relationship follows | Applies once the relationship exists |
Comment [2] to Rule 1.6 says confidentiality encourages a client to communicate fully and frankly with the attorney, even about embarrassing or legally damaging subject matter. I want to hear the hard part at the first meeting.
Where the crash report, exchange details and insurance cards come from
A North Carolina crash report is the written report a law enforcement officer makes after investigating a reportable accident, and G.S. 20-166.1(e) requires the officer to make it within 24 hours of the accident. Under G.S. 20-166.1(i), reports made by law enforcement officers are public records open to inspection by the general public at all reasonable times.
The North Carolina Division of Motor Vehicles gives a person involved in the crash a redacted copy by mail or in person on form TR-67A. G.S. 20-166.1(e) also says nothing in the section prohibits a law enforcement agency from providing to the public accident reports or portions of them that are public records. Form TR-67A asks for the county of the crash, which can differ from the county where you live.
Exchange information under G.S. 20-166(b) and (c1)
Exchange information is the set of details a driver in a North Carolina crash hands over at the scene. Under G.S. 20-166(b), a driver required to stop at a crash that has resulted in injury or death gives the person struck and the driver or occupants of any vehicle collided with the driver's name, address, driver's license number and license plate number. G.S. 20-166(c1) requires the same details from a driver required to stop under subsection (c), which includes a crash with property damage only.
The accident checklist in the North Carolina Department of Insurance consumer guide adds the other driver's phone number and insurance information. It tells drivers to record the insurance company and policy number exactly as they appear on the other driver's proof of insurance card. The same guide tells drivers to make sure they have an insurance identification card. The North Carolina Division of Motor Vehicles recognizes an insurance card with the customer's name and policy number along with effective and expiration dates as proof of liability insurance.
| Paper | Where it comes from | Rule or source behind it |
|---|---|---|
| Crash report | The investigating officer, with copies from the NCDMV on form TR-67A or from the law enforcement agency | G.S. 20-166.1(e) and (i), NCDMV |
| Exchange information | The other driver at the scene | G.S. 20-166(b) and (c1) |
| The other driver's insurance information | The other driver's proof of insurance card | NC Department of Insurance accident checklist |
| Your insurance card | Your own auto policy, with your name, the policy number and its effective and expiration dates | NC Department of Insurance consumer guide, NCDMV |
| Medical records and bills | Each health care provider that treated you | 45 CFR 164.501 and 164.524 |
| Photos | Your phone or the phone of anyone who was with you | Your own record, with no form behind it |
The NCDMV says to allow 10 business days from receipt for a crash report requested by mail,. Bring the papers you have after a car accident.
How do I get my medical records and bills before the meeting?
Under 45 CFR 164.524(a)(1), the federal HIPAA Privacy Rule gives an individual a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set. The definition of a designated record set in 45 CFR 164.501 includes the medical records and billing records a health care provider keeps about individuals.
Each provider that treated you keeps its own records and bills, so each one is a separate request. Under 45 CFR 164.524(b)(1), a provider can require the request in writing as long as it tells you so.
Ask each provider for records and billing records
Ask each provider for the medical records and the billing records from the date of the crash forward.
The 30-day deadline under 45 CFR 164.524(b)(2)(i)
A covered entity acts on a request for access no later than 30 days after it receives the request.
One extension of no more than 30 days
Under 45 CFR 164.524(b)(2)(ii), a provider that cannot meet the deadline can extend it once by no more than 30 days. It gives you a written statement of the reasons for the delay and the date it will finish.
Under 45 CFR 164.524(c)(3)(ii), a written and signed request can direct the provider to send the copy to another person you designate. The U.S. Department of Health and Human Services says a January 23, 2020 federal court order limits that directive to requests for a copy of an electronic health record in an electronic format. Under 45 CFR 164.524(c)(2)(i), the provider gives the copy in the form and format you ask for when it is readily producible that way.
Bring the records and bills that have arrived by the day of the meeting.
Settlement papers signed early and your underinsured motorist coverage
The North Carolina Department of Insurance consumer guide cautions, in its uninsured and underinsured motorists coverage section, that the insurance company will not provide coverage if you or your legal representative settles the bodily injury or property damage without the company's written consent. A release or settlement agreement that arrives before the meeting is the one paper to leave unsigned until we meet.
Underinsured motorists coverage is the coverage that protects a covered individual when an at-fault underinsured driver causes injury, in the words of the same guide.
Written notice under G.S. 20-279.21(b)(4)
G.S. 20-279.21(b)(4) ties the underinsured motorist insurer's rights to written notice of a settlement. An insurer that gets written notice before a settlement with the underinsured driver and does not advance a payment equal to the tentative settlement within 30 days cannot exercise any right of subrogation or any right to approve a settlement with the underinsured driver.
Exception. Waiting for the meeting is not a reason to delay telling your own insurance company about the accident. The Department of Insurance guide says the policy requires you to notify the company of how, when and where the accident happened and to cooperate with the investigation, and it says to notify the company as soon as reasonably possible.
If an adjuster has already sent a release, bring it to the meeting unsigned or reach the office before you sign anything.
