Any coordination of the legal case with outside parties needs to be with two-way informed consent, that is, based on written permission from the client to obtain and give client information to designated individuals. Respect for client confidentiality is an ethical duty, but reaffirming confidentiality with the client builds critical trust and reduces paranoia and feelings of persecution. If a client is truly incapable of assisting in his or her case because of diminished capacity, the lawyer should take protective action by, for example, appointing a guardian ad litem, conservator, or guardian as outlined under the Model Rules of Professional Conduct rule 1.14 (b).
A depressed client’s nonresponsiveness is often a major challenge. Documents do not get opened, reviewed, or responded to, so lawyers have a hard time doing their job vis-a-vis the opposing counsel and the court. While a tickler system for hearings and response deadlines are important for all our clients, it is especially important for the nonresponsive client.
Consider going to the client if he or she avoids coming to you, and use the time before or after hearings to work on additional matters, rather than letting them disappear before the next matter is due. Dealing with them in efficient chunks of time is more effective than expecting them to deal with things as they come up. Imagine trying to walk through mud. That is the depressive’s life. They do not typically blame you for their problems, but lawyers might find themselves blaming the client. Depressed clients, in general, are not the way they are by their own volition. They cannot be any other way. Because they are not usually the squeaky wheel, they are also the clients whose momentum the attorney has to drive, rather than assuming that these clients will be equal partners. If a depressed client becomes “the forgotten client,” this client may also become the underrepresented client to his or her detriment.
The anxious client often functions with a combination of avoidance, paralysis, indecision, and over-involvement, and all of these can impede representation. Again, like depression, anxiety is not volitional, and it is overpowering and debilitating when the “what-ifs” and “uh-ohs” and “this-is-going-to kill-mes” take over. The attorney’s responsiveness is key to keeping the client’s anxiety down, but it is a never-ending task. The attorney is often tempted to avoid these clients. Many of the anxious client’s queries can seem minor, irrelevant, or already answered. The anxious client deals more in the emotional realm, rather than the realm of logic, and when their anxiety is triggered, the need to hear answers again is so high that the attorney’s avoidance will ultimately cause greater problems in the relationship. Sometimes with an anxious client, a weekly check-in can help even if there is no development in the case.
Anxiety interferes with the intake and processing of information, so enlisting a client’s trusted friend or family member to sit in on some of the more critical client interviews can be valuable, much like having someone sit in on a difficult medical consult is valuable. The information the client misses can sometimes be regenerated by the third party. The client’s anxiety can be reduced in the conference because he or she has reinforcement. However, prior to including third parties and requesting the client’s consent to do so, the client needs to know the limits of attorney-client privilege and understand that information shared in front of another person (or by the client to a third party) loses the protection, as those individuals are not bound by confidentiality.
Anxious clients can also become nonresponsive due to their worry that the worst will happen and the sense that there is nothing they can do to prevent it. They avoid their lawyer in an attempt to avoid the stress that talking or working on their case evokes. The regular check-in helps reduce the client’s fear and may, therefore, reduce avoidance behavior.
Obsessive compulsive disorder is a form of anxiety. This manifests itself in the client who has to do things a certain way or be overwhelmed by anxiety. These clients are also prone to frequent contact that can seem unproductive and can threaten to paralyze the attorney because nothing is ever just right. It can feel to the attorney as perennial criticism. The thinking fallacy in the obsessive client is that disaster will ensue if the exact right choice is not made, which can result in all decision-making being drawn out far too long because it is so hard to know the exact right choice, particularly in an arena where the client does not know all the parameters and therefore needs to research everything before giving a go-ahead. However, these clients can be good partners when given a task that puts their obsessive skills to work.
It is important to give these clients clear deadlines for responding and to let them know that there will be a limited number of rewrites because the bigger issues will be lost in the details. With obsessive clients, it is important to strike a balance between allowing the client to sufficiently vet the action taken while not delaying to the extent that responses get mired in unproductive changes.
Impulse Control Disorders
Clients who have impulse control problems can be particularly difficult to manage because of their unpredictability in managing their own behavior. Impulse control problems are often a failure in frontal lobe functioning where the client’s executive decision-making is poor to begin with or disappears in stressful situations. Many explosive clients become enraged when they feel they have no control, and they can immediately seek to establish control through intimidation or their own loss of control. Many attorneys unknowingly contribute to their client’s out-of-control behavior by dehumanizing the opposing client and or the opposing attorney with their own aggressive response. There is a significant variation in attorneys’ abilities to tolerate high-conflict situations. It is important, however, to address out-of-control behavior directly and firmly whenever it occurs, including the warning that it may result in the termination of the attorney-client relationship. To prevent a client directing his or her rage toward the attorney, it is helpful to treat it as unacceptable when directed at third parties in or out of the attorney’s presence as a model for conduct overall. Some clients are responsive to the external controls of a reasonable attorney who does not lose control in the face of the clients’ loss of control.
If a client becomes verbally abusive in a four-way conference, it may be helpful to take a break and let the client know you will cancel the session if the client cannot get his or her emotions under control. In some cases, if the client is flooded with anger, it is best to terminate the session or break up the intensity by conducting shuttle diplomacy with clients in separate rooms, having the attorneys going back and forth. Rage is often worse in confined settings, so being able to take a walk with your clients or send them out to take a walk can begin to diffuse the flooding of anger.
If a client is verbally abusing a spouse, helping the client establish a less intimate form of communication is important. The recipient of the verbal abuse will often request this, but it may be appropriate to request it for the legal protection of your abusive client. The best attorneys who seem to get good results for these clients are ones who make an effort to control their clients’ worst impulses. With the individuals for whom the triggering of rage is so fast and out of their awareness until they are in the middle of it, referral to treatment and possibly medication may be critical in order to work with them.
A fundamental human need is to feel valued and effective. The breakup of a marriage or relationship often greatly limits or eliminates that feeling for our clients. Some well-functioning individuals become symptomatic from the breakdown of the family, and they temporarily cannot cope. Some have reunification fantasies and are nonresponsive, while others have underestimated the work involved in breaking free, and they reconsider. Giving these clients options to slow the process down, if possible, or set up interim solutions, can allow them to restore coping mechanisms. The lawyer should not be the person to make the ultimate stay-or- go decision for the client, if the opposing client has not already made it. Giving him or her legal space to make a decision or legal space to cope with the other party’s decision can be helpful.
Litigation Can Derail Difficult Clients
In one case, I represented an anxious, obsessive, depressed client who needed constant reassurance that he was doing what he needed to do for his case (he was). I received a call from opposing counsel who shared with me, with permission from her client, that her client was close to having a breakdown of her own. We were both able to support our clients in slowing down the pace of the case until they delivered their son to college. We devised a procedure for sharing financial information. The integrity of opposing counsel in sharing sensitive information, rather than withholding it, helped both our clients.
In another case, I reached out to opposing counsel to discuss settlement in light of the family’s limited financial resources, a mentally ill client, and an imperiled child. I was met with full litigation mode. Four years later, the resources are drained, opposing client has no relationship with the daughter, and legal fees have siphoned off a good portion of what could have gone to both our clients. Often in family law, there are no clear winners, but in this case, all have significant losses.
With difficult clients, litigation can frequently make things worse. Having both attorneys sensitive to that potential can result in better outcomes for both sides (and their children).
Treating all our clients with dignity, civility, responsiveness, respect, and clarity about the process all along the way is good practice. Set realistic expectations. Do what you say you are going to do or tell them why you cannot. Anything that reduces fear and vulnerability in all our clients is helpful, but that is particularly so with the difficult client.
It is often the case that attorneys will automatically or unconsciously respond to their clients’ poor behavior in some equally ineffective manner, and the difficult client’s behavior is therefore exacerbated. Insuring that you continue to do necessary and timely work for the difficult client, rather than subtly ignoring them or making them wait, will be more effective.
Possible conditions of representation may be that your client remains in mental health treatment or seeks it and also that he or she follows the treatment recommendations of the providers, including medication management and level of attendance. This expectation should be in writing in the event representation has to terminate due to the client’s inability to work with counsel.
In psychology clinical training and in institutional settings, the case conference is an invaluable method of getting perspective and sharpening skills. Many attorneys work in small firms or firms in which routine case management conferences do not occur. For those with a difficult client, the value of setting up that collaboration with another attorney or group of attorneys cannot be underestimated. Client confidentiality must be maintained if conferencing is outside the firm, so changing the fact pattern and names to protect their identities is essential.
And finally, determining which clients you should and should not represent or whose case you may need to withdraw from is key in maintaining professional sanity and professional competence. For some attorneys, this may mean not representing an abusive client. For others it may mean not representing the whiney, dependent client whose needs trigger blame and anger from the attorney. A lot can be learned by reviewing past cases and identifying the personality profile of those clients you have ended up respecting or at least not resenting and comparing them to those clients whose calls you regularly avoided, who made you wish you represented the other side, and who left you dreaming of quitting law and opening a bait-and-tackle shop. fa