Recently, I had an immigration case, where my client was tardy on every deadline and patently refused to do anything beyond the bare minimum to aid their cause. I was emotionally drained by the case but buoyed by the positive result at the end. I must admit I couldn’t fight the impulse to remind the client that they had stood in the way of their own success.
But the whole case left me thinking about a few things: How does one deal with such difficult clients with whom—for many reasons, including ethical considerations—you can’t disengage? How do you still get the evidence you need from them? Also important: How can you protect your own emotional health during such cases? (Immigration cases, in particular—my specialty—can be long.) And, ultimately, how do you protect yourself as an attorney, should the client make untrue or unfair allegations?
The ABA’s Model Rules of Professional Conduct address this issue in Model Rule 1.1, stating that “a lawyer shall provide competent representation to a client,” and this, of course, requires that the lawyer possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation. This is the lawyer’s constant and must guide interactions with all clients. But what happens when the client is not assisting with the preparation reasonably necessary for the representation?
I thought about how I had managed to survive working with this client and came up with a few tips.
Put client instructions in writing
As an immigration lawyer, the skills I learned as a prosecutor and criminal defense attorney in Jamaica before working in America are always in play. When I talk with clients, I take carefully written notes of what they say they want done, and I make them sign it. These are my “instructions,” as Jamaican criminal defense lawyers call it, about what the client wants done or does not want done.
Take background notes
I try to take careful background notes, which may not necessarily make it into the final documents submitted on behalf of my clients. These can, however, be helpful in preparing clients for their interviews; they act as a way to cross-check information that the clients give; and they also allow you to cross-check other documentary evidence; such as police reports, newspaper clippings and so on.
Keep a paper trail
Always, always communicate in writing with difficult clients. The Model Rules do speak to this type of communication, but let’s face it: We have all answered multiple phone calls and even video chats with our clients to update them and check in about their cases.
When you engage in such verbal communication, write down a summary of the conversation as soon as possible afterward and place it in the clients’ files. When there are requests for additional evidence for a case from the government, highlight the deadline in writing to the clients and ensure that they are reminded often in writing. When clients have missed a deadline or a meeting, send a written communication. At the end of the day, you’ll have your paper trail.
Double check all documents and deadlines
Carefully check additional documentation to be submitted, especially when the client declares that the documents are fine and only need to be sent off—or worse yet, offers to send them off. Point out issues, such as the need for certification of translated documentation, signatures and dates on affidavits. Make sure that there are no conflicts among important dates in the clients’ account of what happened to them.
For example, for a client seeking political asylum, both can’t be true that the client was imprisoned abroad during January 2015, yet at the same time, the client was also traveling to get to the U.S. These types of conflicts in narratives are a common issue when people have had trauma in their lives or had to move frequently. Get clarification as needed and make the necessary amendments.
Remember to unplug
The mobile phone and email have made us all more accessible, and that is a double-edged sword. Some clients are respectful of personal boundaries; others not so much, and so a routine email in the middle of the night or a nonurgent telephone call is not unheard of for many practitioners. Unplug from these types of clients, and set boundaries.
There is nothing wrong with taking a few steps back from such clients, even briefly. Difficult clients are exhausting, and it is not a bad thing to admit that this is true—at least I hope not. My client who sparked my idea to write this article was beyond exhausting, and perhaps somewhat uncharitably, I actually told the client exactly that at one point.
The issues around lawyer well-being increasingly are being discussed within the profession, so it’s no longer stigmatized to take a mental health day. Think back to earlier this year, when the ABA hosted mental health wellness events for law students in a number of law schools. There is also a plethora of resources on the ABA’s website that lawyers can access with confidentiality.
In retrospect, should I have ended my engagement with my problematic client? The experience certainly taught me a few things, such as increased patience. Of course, every lawyer relishes a good legal challenge. Perhaps, I didn’t terminate our relationship because I remain a criminal defense lawyer at heart, always relishing the adrenalin rush of a good courtroom brawl. Sorry, I meant case. That’s still the ultimate rush.