February 10, 2021 Practice Management

How to know when it's time to send a client packing

By Marcel Strigberger
Clients can generate more aggravations than nasty opposing counsel, difficult judges or technology, Marcel Strigberger writes.

Clients can generate more aggravations than nasty opposing counsel, difficult judges or technology, Marcel Strigberger writes.

Image from Shutterstock.com.

A learned colleague in my office, Henry, used to say, “The biggest problem in the practice of law is getting clients. The second biggest is dealing with them.”

After 40-plus years in the trenches, I can freely and safely express my candid views on Henry’s wisdom. The short answer is that clients can generate more aggravations than nasty opposing counsel, difficult judges or technology—which, for a Luddite like me, was generally terrifying.

What is a client? The word “client” comes from the Latin word “cliens,” which I often thought meant, “OK, lawyer. You’re mine.”

Unlike other relationships, a lawyer-client obligation can spawn without the lawyer even consenting to it.

The 'phantom menace"

We are warned of the “phantom client,” or the client you never knew you had. Thus, even gratuitously announcing at a party how you would clean the clock of that insurance company denying the disability claim of some stranger Mike you are raising a glass of wine with can potentially expose you to liability.

He may call you one day to chat further about his “case,” and then you discover he cannot sue anymore because his limitation date has passed. The “client” asks you why you did not tell him about the one-year issue claim deadline that evening three years ago at Marge and Albert’s party. The only clock you may have to clean now is your own, when you try to explain to your errors and omissions insurer why Mike came out of the woodwork and is suing you.

I once almost got struck by a phantom, who was a passenger in the same car with my client and was only accompanying her for the interview. He phoned me one day—after the case’s limitation date, of course—lamenting his injuries and asking how the case was coming along. I reacted appropriately, doing three rounds of deep box breathing and uttering that East Asian mantra, “This isn’t happening to me.”

I then looked at my initial notes and saw that I had told the phantom I was representing only his friend and to get in touch within the limitation date if he wanted to retain me.

It was only by the grace of my client’s kind corroboration that the phantom vanished.

The phantom client is a lawyer’s albatross. Imagine some guy sitting in a movie theater and his tooth suddenly pops out. He calls the dentist saying, “Remember me mentioning that my tooth felt funny when we stood in line at that McDonald’s? You never told me this could happen.”

Then we have the lawyer’s obligation to avoid a conflict of interest. I knew a rogue and knave husband who knew the rules, and to limit his wife’s choice of the area’s top gun family lawyers, he hastily called several of them to chat for a few minutes. When the wife eventually approached these lawyers, her call rang a bell, and they all predictably responded with something like, “Oh, you’re the wife of that dermatologist who called us claiming you moonlight as a dominatrix.”

Speaking of pain, once you do get properly retained, you really have to watch your back.

The difficult client

Our errors and omissions insurer warns us of “the difficult client.” There are a number of telltale signals of the difficult client.

1. The lawyer switcher

You are potentially lawyer No. 4. The client will give you reasons as to what was wrong with lawyers Nos. 1, 2 and 3, but you have to question if, indeed, all the other lawyers delayed handling his case because they were all out constantly playing golf. (I actually never saw any merit at all in golf, and I find most golfers are fanatics. I would sympathize fully with this excuse but for the fact that in Canada, we are talking a long winter.) Red flag!

2. The excessively demanding client

This client assumes that your client portfolio consists of one case: his. He’ll call frequently, commenting, “When’s the trial? It’s been a week already since you took on the case.”

Or “My neighbor’s niece got $3 million for her injury. And she only hurt her thumb. That’s not as serious as a pinky.”

You get the picture.

3. The client who gives you money problems

We all know we must zealously fight for our clients’ rights. This obligation is paramount. Then again, to some clients, what does paying your lawyer have to do with the price of a cappuccino at Starbucks?

I would be wary of clients who give you some of the following responses when you ask for funding:

• “Don’t worry about the money.”

• “This case is not about dollars; it’s about principle.”

• “I always pay my bills—just ask my cousin Iggy.”

In rating the relevance of paying their lawyer, they generally subscribe to the Latin term “de minimis.” If you overlook this, you may be subscribing to the Latin term “pro bono.”

4. The uncooperative client

Do they exist? Grrr. I am talking about the clients who are generally unreachable. They’ll vanish without notifying their lawyer. I frequently experienced these types of clients, often in the midst of cases in which I was heavily invested in disbursements. The clients just evaporated. My letters were returned. One client had an email address, but my messages to him may as well have bounced back reading, “I’ll respond soon. I’m out sailing my boat near the Bermuda Triangle.”

Then there are the clients who simply do not provide you with the documents you need. They’ll say something like, “You’ll have it on Tuesday.” I’m not sure how to say that in Latin, but the general translation is, “If you believe that, you’ll also believe it when I tell you my unicorn ate them all.”

Dumping the client

There comes a time when you have to terminate the relationship. Like the von Trapps merrily sang in The Sound of Music, “So long, farewell, auf Wiedersehen, goodbye.” Unfortunately, the solution is not that simple. It would be great if lawyers could just email clients that video clip.

But here, as in most parts, we need a court order to break the shackles. And to succeed, you must swear an affidavit showing justifiable cause. But you need to maintain client confidentiality, lest the opposing lawyer should find out about your tribulations.

The phrase of choice is, “I have not been able to get proper instructions from my client.” If you ask for some money and the client emails you an emoji of a wide-grin smiley face; or the client asks you whether it was obvious to you that he faked his injuries; or if he appears at your office unexpectedly, wearing a costume of the Grim Reaper and terrifies your staff, your affidavit will have to be modified a bit to read, “I respectfully ask this honorable court to remove me as lawyer of record because I have not been able to get proper instructions from my client.”

Most judges will know what you mean and not press you for details. Some probably are thinking, “I wonder—Grim Reaper?”

So was Henry correct in his assessment of the client? As they say in Latin, “caveat lawyer.” What say you?

Marcel Strigberger, after 40-plus years of practicing civil litigation, closed his law office and decided to continue to pursue his humor writing and speaking passions. Read more of Strigberger’s work at marcelshumour.com.