How to Spot the Client from Hell
Karen J. Dilibert
Excerpted with permission of the Illinois Bar Journal, Vol. 89, No. 11, November 2001. Copyright by the Illinois State Bar Association.
Brilliant legal work alone does not insulate you from malpractice claims—and does not ensure payment of your fees either. There are some clients who will never be satisfied with your services. They are predisposed to stiff you and sue you, regardless of the outcome of their legal matters. You might call them clients from hell.
Early identification of these difficult clients is the key. The following is a field guide to assist you in identifying them. With practice, you can smell the brimstone early on and take appropriate steps to avoid claims.
Obviously, the easiest way to avoid a claim from a client from hell is to decline the representation. For most lawyers, this does not mean turning away many clients—perhaps one or two a year. It’s simply not worth the risk to your reputation, your practice, your finances or your mental health to represent a client who will never be happy with your work. Rejecting the client from hell enables you to focus your practice on the clients who understand that every case is not a winner and that you can’t be a miracle worker all the time.
There may be times, however, when you cannot resist the temptation to represent a client from hell. Again, early identification is key, because it will enable you to take appropriate precautionary measures to minimize the likelihood of a claim.
A Field Guide to Clients from Hell
These profiles will help you spot potential clients from hell, but there is no substitute for your gut feeling. Experienced lawyers often develop excellent instincts about prospective clients. Too often, they second-guess those instincts. Claims reports are often prefaced with the statement, "I had a bad feeling about this from the beginning." Trust the bad feeling. It is usually correct.
1. The Shopper
The Shopper has consulted with several other lawyers about his legal matter before coming to you. Before you decide to represent him, you’ll want to find out why those previous relationships didn’t work out. Is he difficult to work with? Did he refuse to pay? If a number of lawyers have refused to represent him, is that because his legal position lacks merit?
There are legitimate reasons for a client to change lawyers. Perhaps, in fact, prior counsel has mishandled the matter. In that case, be aware that by accepting the representation, you may be assuming liability for errors made by prior counsel. Note, too, that you have a duty to mitigate those errors. Your client may be unwilling (or unable) to pay you for your efforts to repair legal work for which he has already paid once.
Be sensitive, too, to the possibility that this once-burned client will be twice shy when dealing with you. If so, you will need to take special care to establish a relationship of trust.
2. The Penny-pincher
Clients have a legitimate interest in the cost of your services. The Penny-pincher, though, is obsessed. You get the idea that she resents paying anything at all. Perhaps even more worrisome is the Penny-pincher’s evil twin—the client who seems completely uninterested in the fees and costs associated with her legal matter. You wonder if she takes her financial obligations seriously.
The risk here isn’t just that you won’t get paid—although that is bad enough. These clients are likely to bring a malpractice claim the moment you press them for fees.
There may be circumstances when you will want to take a matter without regard to the client’s ability to pay. This is laudable and, indeed, is part of an attorney’s obligation to the legal profession. The key, however, is to decide up front whether you will perform your legal services on a pro bono basis. If not, and the client is unwilling or unable to pay your fees, decline the representation.
3. Mr. Great Expectations
This client has unreasonable expectations, either about the outcome of the legal matter or the time needed to achieve the result. For example, a plaintiff in a simple slip and fall case has read about huge jury verdicts and expects a million-dollar recovery. Or the defendant in a civil suit expects the case to proceed to a trial in a month.
You must decide whether you can educate Mr. Great Expectations about the realistic prospects for his legal matter and the time necessary to achieve the desired outcome. If not, it is unlikely that your work will ever satisfy this client. Expect a malpractice claim—not a fruit basket—from him.
4. Ms. Eleventh Hour
Most commonly seen in your office a few minutes before the end of the business day, this client has a deal that "must" be completed tomorrow. Alternatively, she will often appear immediately before the applicable statute of limitations will run. Most lawyers are in this profession because they want to help others. Before you ride to the rescue, however, consider that you have a duty to provide your clients with competent representation. Can you do that in the time available to you? If not, don’t agree to represent Ms. Eleventh Hour.
If you decide to proceed, proper documentation of the scope of your services is essential. The client who comes to you with the eleventh-hour deal and tells you not to bother to evaluate it—"just the paper deal"—will not remember that instruction when the deal turns sour. An engagement letter that clearly delineates the scope of your services is essential.
5. The Missionary
This client from hell is on a mission. Sometimes it’s a noble mission—the selfless pursuit of a lofty principle. Sometimes it’s a deadly mission—the client is out for blood and wants to annihilate the opposition. The problem in either case is that nothing short of total victory will satisfy the Missionary. Unfortunately, this is not always possible. Typically, too, the Missionary seeks victory "at any cost"—at least, until your bill arrives.
6. The Dirtball
If they made a movie about the Dirtball, it would be called Sleazy Client, Hidden Lawsuit. Unfortunately, if you represent a morally questionable and financially unstable client in a business venture, you may be tagged as a co-conspirator when your client’s misdeeds come to light. If something doesn’t "smell right" about your prospective client, his deal or his finances, you owe it to yourself and your practice to check it out before you accept this representation.
7. Counsel’s Li’l Helper
This client—or his lawyer friend or relative—has researched the issues involving his legal matter prior to consulting you. He’s second-guessing you even before you agree to represent him. He might hint that his research should result in a reduced legal fee—after all, he’s done some of the work for you, right? If your client or his lawyer buddy will be backseat driving throughout the representation, the groundwork is laid for an unsatisfactory lawyer-client relationship. Think long and hard about this representation.
8. Member of the Frequent Lawsuit Club
To hear this client tell it, she’s not the client from hell, but the client in hell—the victim of all sorts of wrongdoing. She has been a plaintiff in various lawsuits for as long as she can remember.
You decide: Is the client truly on a bad-luck streak and in need of your help, or is she perpetually dissatisfied and seeking vengeance for real and imagined wrongs? If the latter, don’t be the next defendant on this client’s hit list.
9. Dr. Strangeclient
Everyone has quirks, but this client is off the dial. His bizarre, erratic behavior makes it difficult for you to understand or effectively communicate with him. You get the sense that he’s living in an X-Files episode, with a bizarre conspiracy theory that explains it all. You must ask yourself whether you can work with this client. If you can’t competently represent him, decline the representation.
10. Your Nearest and Dearest
Friends and family can be clients from hell. Don’t assume that Aunt Betty won’t sue you for legal malpractice. It happens.
Resist the temptation to take a matter outside your legal expertise for a friend or family member. Ask yourself if you would accept the representation if the client were a stranger. If not, you will need to decline the representation. It can be tough (and humbling) to explain to Aunt Betty that you are a litigator, and you don’t know the first thing about drafting her will. But it is professional and proper for you to decline a matter if you can’t provide your client with competent representation.
If you do decide to represent your nearest and dearest, be sure to follow all your normal office procedures. Run a conflicts check, docket important dates, calendar the file for regular review, follow your normal billing procedures. Treat it like a "real matter"—because it is.
Suppose you’ve smelled the brimstone and decided not to represent the client from hell. Be sure to send the would-be client an "I’m Not Your Lawyer" letter. As an additional precaution, you may want to send the letter by certified mail, to verify that it was received. This will come in handy later on if the client resurfaces after the statute of limitations has run.
Out with the Bad, In with the Good
Avoiding clients who are unlikely to be satisfied with your legal services will enable you to focus your practice on the clients whom you can effectively and satisfactorily represent. By identifying potential clients from hell in advance, you can make good decisions about accepting representations from these clients and take appropriate risk management measures if you decide to represent them.
The goal is fewer claims—and, maybe, more fruit baskets.
Karen J. Dilibert is Vice President and Director of Loss Prevention for ISBA Mutual. She spent several years in private practice, defending professional liability actions as panel counsel for major insurance carriers and is a former insurance company claims supervisor and insurance agent.
DISCLAIMER: It is not the intent of these materials to suggest or establish practice standards or standards of care applicable to a lawyer’s performance in any given situation. Rather, the sole purpose of these materials is to assist lawyers in avoiding legal malpractice claims, including meritless and frivolous claims. The recommendations contained in these materials are not necessarily appropriate for every lawyer or law firm and do not represent a complete analysis of each topic.