EVIDENCE BANK ESTABLISHED - COMMUNICATIONS PRIVILEGED
In the ongoing conflict environment in which tougher than need be franchisors use draconian contract dispute resolution provisions to limit franchisee options when seeking redress of honest grievances, one of the big problems is access to evidence for franchisees.
Franchisees often cannot look to each other for evidentiary assistance for fear of retaliation against the helping franchisee. Often timing is an issue. Often it is simply not knowing where to look for the help needed.
I believe I have configured protocols for the eventual solution of scarce evidence situations and difficulties. Here is how it works.
Any potential client can come to an attorney to seek legal advice. In that act all communications are privileged (except for certain limited exceptions that do not apply here). It makes no difference that the potential franchisee client does not in the end actually retain the attorney. The protection afforded by the privilege is not limited to there being actual retention or the payment of a legal fee. What people say to lawyers in pursuit of legal advice is privileged.
In the course of dealing with dozens of franchisees and franchisee groups every year, I come into the possession of information that has evidence usage potential far beyond the interests and concerns of the franchisee(s) in my office at that moment. That information is provided to me in confidence and is protected by the attorney client privilege.
Effective immediately, with the consent of the people with whom I am dealing, I will preserve their information in confidential files, organized by franchisor, for use in support of other franchisees of each of those franchisors.
The effect of this project over time will be to build and make available a bank of evidentiary material (including witness identification only to me unless and until the witness consents to being identified).
The impact of this resource will greatly enhance the discovery prospects of franchisees in instances where they desperately need that information in aid of their arbitration and litigation efforts.
My compensation will be that my own quality of legal services provided should be enhanced. Value means a lot, and the value of being the repository of evidentiary information on scores of tough franchisors is too obvious to require discussion.
The value to the franchisees who come to me to discuss the possibility of my being able to represent them will be that they will be getting assistance, without having to pay for the initial conference that can last all day if need be, beyond what would normally be available to them in the instance of consulting attorneys without this kind of resource. If they decide to go elsewhere for help after discussing their problems with me, the lawyers they eventually do retain will be able to consult with me regarding the data bank I keep that pertains to that particular franchisor.
Obviously, if I happen to represent a franchisor with whom they are having a problem, I would have to disclose that immediately and before they provide any information to me at all. Conflicts clearing is always my first exercise in having any conversation with any potential client anyway. It is, however, unlikely that my franchisor clients would be the target. I do not expect that conflicts of interest will significantly impact the range of evidence available to franchisees who come to me in need of evidence that I may have on file.
Every industry attempts to have a clearing house for industry significant information, usually a trade association. The maintenance of a franchise evidence clearing house is novel in that clearing houses for dispute resolution evidence have not traditionally been in place and widely available, certainly not for franchisees.
Even if a franchisee is not going to make a confrontational move, the evidence of improper conduct on the part of his/their franchisor should be kept somewhere against the moment when he/they or others will need it. The benefit of this to the franchisee community needs no explanation beyond what I have already said here.
These conferences may take place in person, via telephone conference or through emails or physical mail. There will be a specific evidence protection agreement for each person providing the information in the course of discussing the problems being faced with that particular franchisor.
I anticipate a lot of franchisee supportive evidence being built up in a very short period of time, especially since there will be no charge to the franchisee(s) unless they actually do retain me to represent them as their attorney.