Nearly every lawyer from time to time agrees to take on a difficult client, be it knowingly or unwittingly. Although this client may task nerves to the breaking point, taking certain steps can help avert disagreements and possible malpractice claims.
Lawyers are usually fairly clear about their role in a representation, but that role may appear to be less clear when you’re dealing with a difficult client. Your first imperative, then, is to get clear on who does what.
Establish Your Role with the Client
Your role is to analyze a given situation and offer a solution to the problem presented, or a means of achieving the goal the client has presented. Sometimes, there are several possible solutions or means, all of which should be offered to the client. Don’t forget that “do nothing” is always a possible solution, too. Your role then is to advise on the consequences of the different courses of action. It is the client’s job—and not the lawyer’s—to decide which course of action to follow. After all, it is the client’s life, or business, or litigation, or estate that’s at sake.
Difficult clients, however, are sometimes totally unwilling to make decisions about their legal issues and want the lawyer to do it for them. Do not do it. Let some other influential person in their life help them with the decision. Your job is to help the client understand the choices.
Be Thorough in Your Documentation
Document everything you possibly can, including phone calls, voice-mail messages and e-mail messages. Confirm the client’s instructions to you in writing, and confirm your instructions to the client in writing. Include the possible consequences of various courses of action the client may be contemplating. Save messages and instructions in your usual way as part of the permanent record of the file. This is good advice for any representation, but it’s especially important for difficult clients. They have a way of turning on the lawyer more often and with more damaging consequences than other clients.
Thus, in this context, documenting means recording sufficient details to assist you in a future disagreement. Remember, a record with insufficient details won’t be of much use to you if there’s a subsequent dispute over who said what to whom and when. This means you should record at least the following for all exchanges relating to the matter:
• The client’s name
• The file name
• Who the contact was with
• The date of the contact
• The nature of the contact (phone call, meeting, voice mail, e-mail or the like)
• How long the contact took
• The details of who said what, including what the lawyer said
• Any instructions given during the contact
Inputting the information into a practice management software program can make this task less cumbersome and more reliable than just jotting it down on paper.
In notes of meetings or conversations, it’s especially important to record not only the information the client gave to you, but also the information and advice you gave to the client. In disputes between lawyers and clients, this may be the biggest area of disagreement—and one of the least documented. Moreover, in litigation between the lawyer and client, where there is disagreement about the information provided or the legal advice given to the client and that advice is not documented, courts have often preferred the client’s evidence on this issue.
Be Calm and Clear
It requires more patience than usual to deal with difficult clients. You will need to be calm and very clear with them about everything. The more information you give in writing—and as early in the representation as possible—the less likely there will be misunderstandings.
Also, explain what they should expect regarding their interactions with you and your staff. Be sure they understand whom to deal with on which issues—for example, whom to call to get certain types of information, and when they need to speak directly to their lawyer and when they can deal with staff instead. Many difficult clients want to deal only with the lawyer at every turn, which is expensive, not very efficient and not often necessary.
Make patience your watchword. Do not let the difficult client turn you into the difficult lawyer, or the unhappy lawyer, or the depressed, yelling or swearing lawyer. If you find you are becoming the difficult lawyer, perhaps it is time to transfer the file to another lawyer.
Include Your Staff in the Plan
Usually, the staff will easily be able to identify the difficult client—they may, in fact, know a client is difficult before you do. But they also need to know the risks of acting for the difficult client, so they can behave in ways that minimize those risks, especially in terms of documenting contacts, instructions or information. Make sure they deal with this client the same way you do, using an extra dose of patience.
However, difficult clients are often much more difficult with the staff than they are with the lawyers. Trust your staff and believe them when they describe the client’s behavior. Deal directly and promptly with the client concerning any inappropriate treatment, to ensure that the client understands what the staff ’s role is in the representation and, more importantly, to ensure that the behavior is not repeated. No client is more important than the people who work for you, so institute a zero tolerance policy on abusive behavior toward your people.
Manage Expectations from the Outset
Some clients’ expectations or goals are outside the realm of the services you can provide, or the outcomes you can achieve for them. That’s why it’s important to have a frank discussion with clients, as early as possible, to identify what their expectations are in retaining a lawyer to deal with this particular issue. While clients’ unrealistic expectations take many forms, they fall into the following general categories:
• Expectations about service
• Expectations about time
• Expectations about costs
• Expectations about results
If the client has service expectations that are impossible to meet—such as the lawyer always returning phone calls within 15 minutes or performing significant work for free—be clear from the outset that you cannot provide that level or kind of service. If the client has expectations that are unrealistic or very expensive, such as having the matter concluded on a rushed timeline or all work done by the most senior lawyer on the team, be clear about whether you can meet that expectation, or what alternative will be provided, as well as the costs that will be involved.
Remember, too, the difficult client is also a client who is likely to be unhappy about fees, so you need to establish mutual expectations concerning billing and payment procedures for your services. It’s especially important to bill clients with high service expectations frequently and regularly, and to provide as much detail as possible, so they can understand the cost of those expectations.However, the most essential thing to establish during discussions with clients is what results they want to achieve. Clients who are unlikely to be successful in achieving their goals need to be told that explicitly from the start of the representation, or at the earliest possible moment in the representation. It is far more important to be honest with clients who cannot achieve their goals than it is with clients who can. If the client cannot, or will not, accept your assessment of the matter, perhaps the client should find another lawyer.
Justice Carole Curtis sits on the Ontario Court of Justice in Toronto. Previously she was the sole proprietor of the firm Carole Curtis, Barristers and Solicitors, working in all areas of family law for 30 years. An earlier version of this article appeared in LawPRO Magazine’s Spring 2004 issue.