What to Do When Your Client Threatens to Sue for Malpractice or Lodge a Bar Complaint

When a client is upset and threatens your license, it can be a true test of your emotional intelligence. Here’s how to weather the storm with dignity, tact, and compassion.

How to Respond to an Angry Client Before a Complaint or Suit Is Filed

Shawn L. Holahan

Bad news is hard to take. Your client is no different. Your client has made it known to you that he or she is white-hot because the results obtained aren’t what the client expected or because the underlying matter isn’t progressing as fast as you had indicated it would. The more unfamiliar your client is with the legal system, the more unlikely it is that your client will understand the nuances of law.

You might get lucky—your unhappy client could just go away quietly. But if not, and you have ignored the client, you will have squandered a valuable chance to resolve your client’s beef and to prevent a formal complaint or malpractice suit. If angry enough, a former client will complain to whoever will hear his or her issues.

So, what do you do with an angry client? Don’t ignore your client but be prepared before responding.

Get in the right mindset. Maybe you’ve never had a client complaint in your entire career. You clocked hard hours for this ungrateful client, and you’re irritated and angry. You will only make matters worse if you can’t control your feelings before responding. This will be hard to do, especially if you think the client’s complaint is meritless and is taking you away from other clients. Only when you can put your emotions to the side will you be able to deal objectively and effectively with your client’s complaint.

Listen to your client. Pay attention to his or her grievances. Take notes of what is upsetting the client. This will come in handy not only in your future communications with your client but also will provide very important information should a formal complaint or a lawsuit occur. By remaining calm, you are likely to harvest more useful information from your client than if you get into a screaming match. You want to know why your client is angry.

Before you respond, create a chronological timeline of your dealings with your client and get your file in order. Gather the universe of documents pertaining to your client, such as the underlying file, all communications to anyone about the underlying matter (including texts, email, snail mail, and even records of missed calls), and time and billing records. Include memories that may not have been preserved in email or text (e.g., where communications took place and when). Knowing the order of events will help you address your client’s concerns and respond to an official complaint or malpractice suit, should one be filed.

When you respond to your client, don’t make it worse. Avoid vitriol, regardless of your client’s reactions. Stay calm. Before you pick up that phone or send an email to your client, commit to keeping your cool. If speaking directly is not a good idea or is impossible, a carefully worded email response might be best. Speak and write to your client as if people other than your client will hear or read it. Keep it short, professional, and to the point. Try to answer all your client’s questions.

And, always, if your client demands a copy of the file, provide it and make a copy for yourself, even if the client owes you money. The file belongs to your client—always.

If a complaint is filed and you’ve done the steps outlined above, you will be in a better position to cooperate with your investigatory agency (e.g., your office of disciplinary counsel). Being cooperative and responsive will be positive mitigating factors that will always redound to your favor. Should a lawsuit result, these actions will give you a head start in preparing your defense.

What to Do If a Bar Complaint Has Been Lodged

Charity Anastasio

Many lawyers dread a bar complaint like nothing else. Just to contemplate getting one makes our palms sweat and shoots fear into our hearts. When it happens, we generally don’t post it to social media, saying we were wronged. We keep it secret, telling a few friends and maybe getting ethics advice. I’ve talked to lawyers who didn’t even tell their spouses about the bar complaint. To most, it is a very tough time.

But the truth is, it happens frequently, and, in most jurisdictions, more than 90 percent of complaints are dismissed as groundless once the lawyer answers and the facts are reviewed.

Further, many states have diversion programs. Each state’s rules on diversion are different, but I use the metaphor that it is like drug court for lawyers. A lawyer with extenuating circumstances who made an actionable mistake could find relief by following instructions of bar counsel—usually laid out in a contract that includes such things as auditing processes and procedures with a practice management advisor, going to certain ethics and practice continuing legal education courses, or meeting with the lawyer assistance program’s therapist for a set time—to show rehabilitation and that the lawyer is addressing the underlying issues. In other words, this bar complaint isn’t the end of the road, even if it feels like it. Reframe the issue and deal with it proactively by taking these five steps:

1. Don’t panic. Look at the file objectively. Are there mistakes here? Did you do everything you could, or are there places you fell down on the job? Is the client simply someone with misdirected anger? This can sometimes be hard to dissect objectively, so consult with a trusted colleague, lawyer, or friend. Disclose all the facts and ask for perspective.
2. Be honest with the client. Don’t fall on your sword about everything, and don’t deny a mistake that was truly made. But try to have a dialogue and take it out of the emotional arena.
3. Don’t be threatened into action. Some clients become bullies who use threats to get what they want. If they are just bullying you, it’s better to take the complaint and answer it properly because it puts you on a fairer playing field. But if that’s the route, don’t stoop to their level as you exit. Withdraw properly under the rules (if that remains to be done).
4. Check your malpractice policy. Many require notification if there was a mistake you could be sued for, even if you haven’t been yet, so you need to tell your insurer as soon as the client notifies you that he or she has an issue with your work. Many policies have coverage not just for malpractice actions but also for bar complaints. Read the terms and talk to the carrier so you know what you will be responsible for and what they can do.
5. Finally, if you do get a bar complaint, answer it. You must answer. Sometimes it is best to hire a lawyer to do this for you, especially if you are emotionally charged by the situation. If you don’t have the funds to hire a lawyer, do your best job to stay objective, stick to the facts, and limit information only to that needed.

What to Do If a Malpractice Claim Has Been Filed

Monica Logan

One saying I appreciate, particularly in the legal field, is “hope for the best, but plan for the worst.” When faced with a potential malpractice claim, imagine your worst-case scenario and then plan for it. Admittedly, it’s not fun to contemplate this unpleasant situation—and many lawyers understandably try to avoid even thinking about it. Confronting your most dreaded outcome, however, can help you realize that some factors are outside your control, freeing you to focus on constructive actions that are within your power. You can’t force your client to drop the malpractice claim, for example, but you can take proactive steps to prepare for—and possibly mitigate—that worst result.

First, get your files in order. Review the client file to ensure completeness. Include documentation of all actions and communications to the client during the case. If you haven’t already, save your emails to the file. Preserve computer hard drives and mobile devices that might contain parts of the client file. If your file is printed, scan or copy all pieces for your own records. Remember to keep your communications with your malpractice insurance company separate from the client file.

Second, contact your malpractice insurer. Under many insurance policies, you have a duty to report a claim or potential claim—whether you think it’s baseless or not. Review your malpractice insurance policy, then call your carrier. Be prepared to discuss the situation and your options candidly. You will likely need to send them a copy of your client file to review, along with any other relevant documents. Depending on your policy, your insurer may be able to provide instructions or guidelines about tricky issues such as producing the client file or making any required disclosures to the client.

Third, reach out for resources to navigate this challenge now and in the future. Making a mistake in representing a client is often extremely upsetting. Receiving a legal malpractice claim can be one of the most stressful experiences in a lawyer’s career. Your insurance carrier or your state bar association may offer practice management assistance to possibly prevent the issue in the future. Many state bars also have lawyer assistance programs that can provide personal support to lawyers coping with the stress of a malpractice claim.

By planning for the worst, you are proactively protecting yourself and your practice. And with a plan in place, you can feel confident in hoping for the best.