GPSolo Magazine - Oct/Nov 2003

 

Client as Co-counsel

Have you ever had a client who wants to approve all correspondence before you send it out? Or one who wants to rewrite the pleadings? What about the client who insists that you make a discovery request you know is improper? Or that you make specious arguments or take untenable positions? The client who wants to be co-counsel—the "control client"—poses special challenges to the attorney.

Control clients can become problem clients when their expectations are not fulfilled. The key to working successfully with control clients is to spell out clearly what constraints you will accept from them. When appropriate, those constraints must be documented in your fee agreement or by letters to the client. When both you and the client have come to an understanding of what the client may expect from you, then many control client problems can be avoided.

Red Flags at the Initial Interview

The first time you will realize that you are dealing with a potential control client likely will be at the initial client interview—provided, of course, that you have structured the interview to allow this issue to surface. When you sit down with the client, do you discuss that your office will send copies of all correspondence to the client? Do you talk about the discovery process? How do you treat billing? What do you tell clients about settlement negotiations? What do you say about trials? A discussion of these subjects should prompt the client to identify how much input he or she wants to have on the mechanics of the representation.

When you realize you are dealing with a control client, talk it out, candidly and honestly. The control client's most common request will be, "I want to review all letters before they go out." You should ask why. The usual response will be, "to make sure the letter is correct." At this point, you have the opportunity to explain that many of the letters that lawyers generate are routine (such as transmittal or scheduling letters). Of course, you will insist that the client approve any critical correspondence (such as settlement letters), or at least their substance, in advance.

Even after this explanation, some clients will remain unmoved. You then have a choice to make. Are you willing to work with a client who requires this degree of control? If not, then you should politely inform the client that you are unable to take on the case. If you decide to take the case anyway, then you must explain that the client's requirements likely will increase the cost of the representation.

A variation on the control client problem arises when the client is not the one who will be paying the bill. This situation is most common in family law cases when a spouse, or an ex-spouse, brings his or her parents to the initial interview. In some instances the parents truly are there simply for moral support and to pay the bill, but other times the prospective client is being browbeaten by the parents into taking certain positions or making certain demands. A big clue in these interviews is who is doing the talking. If the parents tell you what the client wants, trouble looms. As always in these cases, it is imperative for everyone to understand who the client is and that you may not even share information about the case with the parents unless the client gives you written permission.

The Emerging Control Client

Often it will be clear at the initial meeting that you are dealing with a control client. In other instances, however, you might not realize that you have been retained by a control client until well along in the case. In litigation this can occur when the client wants to edit or add to the pleadings. For example, in a commercial case the client might request that you plead usury when obviously there has been none. A personal injury client might request that you plead elements of damages that are not allowed by law. In a divorce case, the client might direct you to plead adultery for the sole purpose of irritating the other spouse. In such instances, you must educate the client. Claiming usury when it does not exist, praying for unobtainable damages, or pleading adultery just to make the other side mad hurts the client's case because it harms the client's credibility-not to mention yours.

Control clients might not show their true colors until after discovery has commenced. This can manifest in two ways. First, the control client might prepare extensive, irrelevant, or even nonsensical responses to discovery requests such as interrogatories or requests for production of documents. Again, the client must be educated that such efforts actually undermine the case. It's a waste of your time and the client's money to sort through proposed discovery responses that are obtuse or obstructive.

The second type of control client in discovery is the energetic client who, for example, wants to interview witnesses, obtain witness statements, or procure records. The client will not understand—perhaps disingenuously—that it harms the client's case to interview witnesses. You should explain that because the client is human and interested in the case, the client will tend to hear only what he or she wants to hear. Moreover, when witnesses are talking only to one party, they are more likely to make extreme statements they would not repeat to a third person—or in a more formal setting such as a deposition or the courtroom. Explain that the client's case depends on what a witness truly will say.

Another reason for the client to stay away from witnesses is that no good can come of it at trial. By talking to witnesses, clients open themselves up to impeachment. If the witness's testimony is helpful to the client, then the other side will accuse the client of influencing the witness. If the witness's testimony hurts the client's case, then the other side will claim that the witness's testimony is credible because it remained harmful to the client despite the client's attempt to woodshed the witness. It's a no-win situation if opposing counsel is on the ball.

The perceptive client will observe that the same sorts of criticisms can be made of attorneys. But attorneys are trained to defuse these criticisms. Every time they interview a witness, attorneys should emphasize that they want to know the truth above all else. If attorneys are attacked for speaking with a witness, they can respond effectively—for example, "What kind of an attorney would I be if I didn't talk with the witnesses to make sure I understood what happened?" This response is not open to the client.

A Busy Client Is a Happy Client

The best strategy for dealing with a control client is to redirect the client's energy in a productive fashion. One way to channel that energy is to enlist the client in obtaining documents or records—in effect, serving as a runner. For example, if you need a certified copy of a deed or a will, you can dispatch your client to the clerk's office to obtain it (and to pay for it directly) rather than having you write for it, send someone else to get it, or go down to the courthouse to get it yourself.

Another area in which the industrious client can help is obtaining medical records. In these days of HIPAA, your client can execute, while at the doctor's office, whatever amended medical authorizations the doctor's office requires. Further, the doctor's staff will find it harder to ignore the patient who is standing there waiting for records than to ignore a letter from an attorney requesting records. As with other records, the client can pay for copies of medical records on the spot.

A third way to engage the control client productively is to give the client "homework." Although there can be several types of "homework" assignments, the primary assignment is for the client to make a timeline of what happened and when it happened. You should ask the client to prepare a timeline in whatever format is convenient for the client: tape-record it, hand write it, or type it up. Invariably the control client has a computer and will present you with many pages explaining the case. Just be sure that the client includes dates (and times of day when pertinent), together with a description of what happened and who was present. The client also should identify any documents relating to the event, such as letters, memos to the file, or police reports.

Doing "homework" is constructive for two reasons. First, it furnishes the attorney with a detailed road map of how the case came about. Second—and particularly important when dealing with the control client—homework gives the client an opportunity to express his or her frustration with the situation. Most people need to vent before they can listen. Pouring out one's woes on paper releases emotion while providing the attorney with valuable information.

Problems Late in the Case

If control clients remain frustrated, or become unhappy when they find that they cannot control the case to the extent they wish, the attorney might encounter a "reverse" type of control. Rather than attempting to dictate how the attorney should handle the case, the control client could cease communicating with the attorney. The control client even might forbid the attorney from initiating or responding to communications from the other side. Not only will these instructions be damaging to the client's case, but they can harm the attorney professionally. This harm can include injuries to cordial professional relationships, charges of professional misconduct, and even accusations of malpractice.

Another possible problem lies in de facto unbundling. Much has been written in recent years about the unbundling of legal services. Cafeteria-style legal services can be helpful to the client and appropriate under some circumstances, but not when your fee agreement contemplates traditional legal representation. If you allow the control client tacit permission to unbundle your services, then you could open yourself to a charge of professional negligence when operating under a generalized legal services agreement.

Document Everything

When dealing with a control client, it is important that you and the client have clear expectations of your relationship and that you document them. If the client insists on reviewing all correspondence before it goes out, then you should include that requirement in the fee agreement. You also should include language in that agreement by which the client acknowledges that this request could drive up the cost of services provided. Then you should follow the fee agreement scrupulously.

As the case progresses, your client's requirements can change. Perhaps the client will decide not to review letters before they are sent. Should the client change his or her mind about such issues, you must prepare and execute a written amendment to the fee agreement setting forth the change. In other words, as the case evolves, the agreement should evolve as well.

In other situations, it might not be necessary to amend the fee agreement, but it remains important to document client instructions. For example, a control client could direct you not to spend the time and money to photocopy documents produced in a case or not to make a copy for the client. When the client gives you instructions like these, you should write a letter to the client confirming them. If appropriate, you should include in the letter an explanation of why you disagree with the client's directive. Beware the client who might claim not to have received a letter from you. When the client refuses your advice on a critical decision, you should require the client to sign your warning letter.

More Help from the Control Client

Although control clients present special challenges to the lawyer, control clients also can prove helpful, especially later in the case. A control client will tell you of certain avenues of questioning for witnesses and likely will furnish you with proposed questions or even a complete witness exam—never mind whether you requested this help. Some of the questions will not be appropriate, but others will bring points to your attention that you overlooked or that turn out to be important when viewed in a different way. Further, the more heavily a client is involved in trial preparation, the less likely it is that the client can criticize it.

Sometimes the control client will surprise you. Many control clients realize how difficult they are to work with. Some control clients even develop a sense of humor about the extent to which they seek to run the show. These clients, when handled properly, will appreciate your efforts-if they don't drive you crazy first!

Jimmy L. Verner Jr. is a principal at Verner & Brumley, PC, a four-lawyer family-law firm in Dallas, Texas. He can be reached at jverner@vernerbrumley.com.

 

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