Client selection: How to red flag high-risk clients (including relatives) and build a solid client base

Transcription

1 Client selection: How to red flag high-risk clients (including relatives) and build a solid client base By Jim Calloway Veteran lawyers have hopefully learned what clients to avoid representing. Today we will discuss some warning signs of potential problem clients. Unfortunately, no such treatment can be completely exhaustive. When a client exhibits several of these warning signs, however, it is appropriate to ask yourself whether you should represent this client at all. 1. The serial client. This client comes to you after having first been represented by one or more lawyers. The client may even give you a very clear warning sign by describing the other lawyers as incompetent lawyers or "crooks." Surely it is not that difficult to appreciate that when the two prior lawyers that this client has used on 29--1

2 the matter are both deemed crooks, then at some point in the future the client will be sitting in front of another lawyer describing you as a crook as well. The simple solution to the serial client is to send him to that next lawyer now and remove yourself from the "crook" chain. This is certainly not to suggest that every time you are the second lawyer on a case (or perhaps even the third) the client is a problem client. A few deft questions will generally expose whether the prior counsel gave less-than-adequate legal representation, potential conflicts of interest or other matters that might necessitate obtaining new counsel. 2. The client who says, "Money is no object, it is the principle that is at stake." This is almost a cliché in legal circles. It is certainly true that many times there are important and significant principles at stake in legal disputes. However, generally speaking, the client who says money is no object, will change his or her opinion approximately the time that he receives the first bill. Even when it is true that the client is willing to battle for a principle and appreciate the fact that the cost -benefit ratio in this battle may not be positive, it is still appropriate to consider whether this means that you are taking on a matter that is incapable of settlement or outof-court resolution. In these days where judges strongly encourage early settlement and often will force litigants through mediation, arbitration or other methods of alternative dispute resolution, it is important to consider whether this attitude will significantly handicap your ability to bring this matter to a resolution. 3. Last-minute Larry. When you are consulted on a legal matter on the eve of a critical deadline that a client has known about for some time, you have received a very strong warning signal. It is certainly true that many of us lead busy lives. Often a 30-day deadline on a

3 summons or other notice of legal proceeding signals to the client that the lawyer must be seen within that 30-day period and they may put things off until the last minute. They may not appreciate that a document must be drafted by the lawyer and filed at a courthouse within that period. However, it is also true that a client who has a meritless claim or who has been rejected by other lawyers because of troublesome facts in the disputed matter will wait until the last minute and hope that he or she can rope you into representation because you will focus on the immediate deadline rather than the underlying merits of the matter. When a client contacts you on the day of or the day before a deadline in a litigation matter, it is always wise to make a phone call to plaintiff's counsel to see whether you are the first lawyer who has called that lawyer on this matter. 4. "You wanted me to bring something to the appointment?" Many legal matters turn on contracts, documents and other types of evidence. When the client should have in his or her possession an important document that is significant to the matter and does not bring it to the appointment to discuss this matter with the lawyer, this is a very strong warning sign. In fact, it may be that the client is quite comfortable with giving you his or her interpretation of the document in the hopes of getting you to represent him in this matter when ultimately the document you will receive for review is quite negative and does not square with your client's version of the document at all. 5. You are co-counsel with the client's mother. There are many people who have family members, close personal friends, ministers, and other individuals that they have relied on advice for a long time. There is certainly nothing wrong with that nor is there anything wrong with this person being supportive and encouraging by accompanying the client to the initial interview with their lawyer

4 However, if the advisor who accompanies the client insists on sitting in the initial interview and the client will not allow you to talk to them separately, several legal issues present themselves. Among these is whether you are destroying attorney/client privilege by allowing a third party to listen into the discussion. (The answer here is almost always yes.) The main problem with this type of arrangement is that the client is going to look to the parent or other advisor to validate your advice, and you may find yourself in a position at some point of being juxtaposed with the advice of your unlicensed co-counsel. It may be a workable compromise for you to meet briefly with everyone befre confidential matters are discussed. A subspecies of this is the client who is having their fees paid by a third party. It is certainly appropriate to have a client's fees paid by a third party. However, good practice dictates that one would never accept fees from a third party without having the third party sign an agreement to the effect that they are giving the fees to the client to be given to you as a retainer, that they understand that they will not be entitled to confidential privileged information, that they understand that they will not be entitled to ask for a refund of the money that has been so advanced. 6. No Pay Nellie -The client who is reluctant to sign a retainer agreement and who also has a good excuse as to why the retainer cannot be paid immediately is an obvious problem. Getting an adequate retainer is, of course, a basic tenet of good law practice management. The client who cannot pay a retainer is certainly a business situation that many lawyers encounter. The client who has apparent financial assets and still refuses to pay a retainer fee is a client that should be shown the door. It is critical that you never allow yourself to be placed in a position where you are more committed to a client's matter than the client is

5 7. The Eternal Optimist- A difficult client is the client has unrealistic expectations about the relief they may be seeking. In an earlier time,, lawyers would often take matters with the client espousing an unreasonable view of what the ultimate result in the matter would be. It was thought that the gentle persuasion of the lawyer over time combined with the client getting a realistic view of the cost of contesting the matter would make the client more reasonable. Whether that was true, or even ethical, back then matters not. The simple fact of the matter is that this is not true any longer. A client who has incredibly unrealistic expectations about a matter is very likely to result in a client who refuses reasonable attempts to compromise, who is unhappy with the attorney throughout the proceeding, and ultimately this is the perfect profile for a client who will file a bar complaint against his lawyer when the matter is concluded. Do not kid yourself. This is not a client that you want to represent. It is appropriate, however, to outline to the client in clear and unmistakable terms your view of the facts and your view of the range of outcomes. If the client listens to you about your view and moderates theirs, then this may be a very teachable client. 8. The irresponsible client is often one that cannot be easily identified during the initial interview. It is important to pay attention to the client who often cancels or does not keep appointments; who wishes to argue not only with your advice, but your explanation of court orders; who is argumentative at some times and silence at others demonstrates certain personality traits that make them a difficult individual to represent. Often this client can be rehabilitated with a come to reality talk at an early stage in the proceeding. They need to appreciate the priority

6 their legal matter deserves and that fact that they will not be able to get help from any lawyer with this behavior. 9. The greedy client. This is a subspecies of the client with unrealistic expectations, but here it is all about the money. Certainly an individual who has been wronged or disabled by the acts of another has a right to want fair compensation, but it is certainly true that some clients are simply too greedy for their own good. We can all think back to the national publicity given to the lawyer who sued the cleaners for multiple millions of dollars based on the loss of a single pair of pants. Ultimately the greedy client will be recognized as such by a jury or judge and this may result in them receiving less than they might have received if they had presented a more sympathetic case. And, of course, if you obtain a successful result for them, then this client will turn to arguing with you about the amount of your fees. 10. The dissembler. A client who evades the real issues and continues to change the subject or wishes to talk about something that they feel is a strong point for them, at some point self-identifies themselves as a potential problem client. It is certainly true that people come into a lawyer's office with a very specific set of views and everyone has their own viewpoint, but a rational individual will allow you to discuss all viewpoints and will listen when you explain these. The client who wishes to either change the subject or fails to acknowledge uncomfortable facts is not a client that you want to tie yourself to for the foreseeable future. 11. You have a bad feeling about a client that you just cannot quantify. This is a much more challenging situation for the lawyers. But is probably one of the most important categories to recognize. We are used to relying on facts and not our gut feelings. However, if a client appears to you to be less than credible or if there is something about their story that you just do not believe without referring to any external facts, what is the likelihood that a judge, jury

7 or other finder of fact will have the same reaction when the client's credibility is at issue? Often there may be members of your staff that will be able to help you in this regard especially if you are not a particularly intuitive person. If an individual comes in and meets with you and each of your staff members who helped him before the meeting suggests to you strongly that you should not represent the person, give their opinion a lot of weight. What about representing relatives? It is very common for some lawyers and some advisors to lawyers to categorically state never represent your relatives. For many of these, they are just repeating advice they have been given over the years. For others, they may have a particular horror story that they will live with from now on that started with the agreement to represent a relative. However, it is not my position that you should never represent relatives, especially in this difficult economy. Certainly when you represent a relative there is the potential for many negatives. Let s discuss these potential problems briefly so that you will be able to deal with them, hopefully in advance. A relative for a client may: a. Expect to receive legal services for free. b. Fail to respect your professional judgment because they knew you way back when. c. Have a negative view of your advice based on items that you do not know of. d. Have the potential to ruin many family gatherings in the future and create other divisions within your family in reaction to obtaining an unfavorable result in their legal matter

8 However, as stated, I do not categorically say that you can never represent a family member. Suppose you felt like you were perhaps the best DUI defense lawyer in your city. You had both attended and taught seminars on advanced DUI defense techniques. You had a large portion of the DUI defense work in your region. You sometimes tend to be somewhat critical of other lawyers whom you believed settled out DUI cases on terms less favorably then they might have obtained or failed to do the necessarily investigatory work before advising clients to enter a plea. Suppose your nephew is arrested for DUI and your brother brings the nephew in to discuss the case with you. Do you really believe it is in your best interest or in your nephew's best interest for you to automatically send him off to another attorney because of the relationship? In fact, it may be that because of the relationship, this client will receive the best possible level of services that you are able to deliver. There is simply no reason to decline every single case just because there is a family member involved. But it is also important to note that one of the values that a lawyer brings to a matter is objectivity. If there is any reason that the relationship would cloud your objectivity, it is not only a good plan, but perhaps even required under legal ethics rules to let another lawyer handle the matter. Here are some other hard and fast "black letter" rules that are associated with representing relatives. 1. Never represent a relative in a family law matter. In all likelihood, this is where many of the lawyers who have bad stories about previous matters obtain these stories. Family law is simply too close and too personal for you to be objective, even on something as simple as an agreed divorced proceeding. In addition, the collateral consequences of family law matters impact other family members besides the two of

9 you. If visitation is unable to be obtained for the family Christmas and a child is absent from the family Christmas gathering, this will be a black cloud that hangs over the holiday impacting everyone including your immediate family and your client's family. And let s face it; complaining about the bad break one got in their divorce is often a topic of conversation when family members get together. Simply tell individuals that it is important for them to receive objective advice in this matter and because you are also a member of the family you should not be giving legal advice here. Stick to your own advice then, unless it appears that the situation is so bad it may amount to malpractice or neglect. Then only tell them it is time to find a new lawyer. Hopefully all of the you will have to put up with later will be a good natured complaint that you would have probably done better than the lawyer they had. 2. Never represent a family member without a written and signed fee agreement. Some would say that you should never represent a family member for free. I leave that to your discretion. I would strongly suggest, however, that it is appropriate to have a relative read and sign an attorney fee agreement even if you then write in that you will be representing them for a flat fee of $20 for the entire case. There are other protections that you have within your standard attorney/client agreement and other information that needs to be communicated to a potential client. You want them to sign an agreement. Hopefully by following these tips you will build a solid client base of good clients and not have to deal with too many negative clients. It should be noted, however, that people with disagreeable personalities tend to have more legal disputes than some of the rest of us. So do not be surprised if from time to time despite your best efforts you find yourself representing a problem client