Robert Kraft has a Super Bowl ring for each finger on his right hand, plus one more. As the owner of the New England Patriots, he never told Bill Belichick how to call plays. Nor did he lecture Tom Brady on the art of throwing a football. Much like Queen Elizabeth II, he led by staying out of the way. “In life it’s important to try to know what you don’t know,” he said. “And then get the best people.”
This attitude is not universal. Sometimes the person writing the check wants to be the general manager, the head coach, and the quarterback. Here’s a hypothetical that may be familiar to you: a lawyer represents a client CEO in defending against a civil suit involving fraud and business diversion claims. The client is a busy, successful CEO who really doesn’t have time to talk with the lawyer except when the CEO calls to bully the law firm staff into interrupting the lawyer to take the call and insists that the lawyer take actions in the litigation for which there is no good-faith basis. The CEO demands that the lawyer file the frivolous defenses and counterclaims anyway.
While this may seem like an extreme example of a “challenging” client, it is not uncommon. Lawyers know that technically, under the Rules of Professional Conduct, clients control the “objectives” of a representation (Rule 1.2), and lawyers decide the means to achieve those objectives. Right. Except for the clients who want to control everything. And the clients who have only a vague grasp of truthfulness.
So how do lawyers manage such insistent clients? Those suggestions will follow—along with what must happen if the client refuses to comply with the lawyer’s legal and ethical obligations. But first, some tips to identify and avoid clients who will push the ethical bounds of representation and your patience.
Frequently when a lawyer asks for help with a bar grievance or legal malpractice claim filed by a former client, the request begins with “I know what you’re going to say—I never should have represented this person. . . .”
For lawyers in private practice (as opposed to public defenders, prosecutors, public interest lawyers, and in-house counsel, who, for the most part, cannot select their clients), in practice, a conflict check does not involve looking at the Rules of Professional Conduct—it requires trusting your instincts and learning to say “no” before accepting a new client who has all of the external indicators of being someone who will make representation difficult or at least miserable. A head coach can only do so much if the general manager doesn’t pick the right players. Warning signs include the following examples.
People who have fired their past three lawyers. Of course, there are exceptions to this (such as a prior attorney being appointed to the bench or moving out of state), but at least ask if the prospective client has hired or consulted any other lawyers on this matter—and then if the prospective client answers affirmatively, always ask who the prior lawyers were. If the prospective client had more than one prior lawyer who is a respected member of the bar, walk away. Especially if the prospective client has filed bar complaints against all of the prior lawyers! When a star receiver gets traded three times and bashes each quarterback on the way out (cough, Terrell Owens), it might not be the quarterback who’s causing the problems.
People who say it’s the “principle of the matter—money is no object!” Yes, money actually is an object, and anyone who is willing to spend significant sums just to prove a point may not be satisfied by your best efforts. Do not try to quote these prospective clients an outrageously high fee deposit just to discourage them because they’ll probably pay it and you may be stuck representing someone who expects results that are unrealistic, illegal, or unethical. Managing client expectations to conform to what is legally and ethically permissible starts from the very beginning of the representation. If a potential divorce client tells you that he or she wants the death penalty for the opposing party, and it’s not a joke, no matter what you achieve for the client in the divorce, the client will not be satisfied. Would you rather work for Dan Snyder in Washington, who spent lavishly as he cycled through 10 coaches in 23 years? Or would you rather work for the Pittsburgh Steelers, who have had three head coaches in the past 54 years?
People who record everything. This level of paranoia is not healthy—for the client or for your firm. People who record every conversation create too much of a risk that they may inadvertently waive the attorney-client privilege, not to mention there may be conversations that you have with a client that you would prefer not be retained for eternity. Caution prospective clients against recording everything. You want people to remember you for your successes, not a Spygate scandal.
People who want to control all aspects of a matter—including decisions only a lawyer should make. As noted above, clients determine the objectives of a representation and lawyers select the means to achieve those objectives, according to Rule 1.2. When a client tries to control every aspect of the legal process, including attempting to draft or rewrite motions, or insists on which discovery requests should be served, the representation is going to be difficult at best. It is not unusual or unethical for clients to desire to manage fees by performing their own research or discovery production or limiting certain matters. However, the lawyer controls how the legal objective is accomplished, including the motions filed, discovery propounded, and legal arguments that can be made—if supported by the law and the facts. If the client imposes restrictions (financial, communication, strategy, legal arguments, etc.) that limit the lawyer’s independent professional judgment, the matter should be declined. To avoid this dilemma, educate new clients about what to expect in an attorney-client relationship, including that they are hiring you for your legal expertise so they do not need to edit every letter that goes out or dictate which depositions to take, because those are decisions that should be made by their lawyer. As someone who represents lawyers in legal matters, I have found it is not unusual to have clients want to contribute their perspective on motions or strategies, and another set of eyes is always useful to catch errors in a draft, but lawyers should avoid (if possible) clients who want to micromanage the representation to the point of demanding unnecessary changes or discovery requests. Assess the client’s level of engagement at the beginning by asking questions about how the client perceives the attorney-client relationship to operate, using specific examples of how motions will be reviewed and filed. A lot of people may contribute to a game plan, but there is only one voice calling the plays on game day.
People who negotiate fee agreements incessantly. Slight modifications in terms or rates are routine, but someone who wants to redline every clause in your fee agreement is usually someone who will be high maintenance during the representation.
People who communicate only by text message or through their assistant. Difficulty communicating with or even finding a client rarely improves over the course of a representation and may require that the firm withdraw if you cannot contact the client. If the client does not have any way to accept telephone calls, emails, or even letters, the representation may violate Rule 1.4 (duty to communicate). If there are personal safety issues that restrict a client’s ability to receive mail at a home address (such as in domestic violence situations), suggest that the client rent a mailbox and get a separate telephone number. If the client wants the lawyer to leave messages solely with the client’s assistant, family member, chief financial officer, or whomever, this client will be a problem. Explain at the beginning of the representation that if you cannot speak directly with the client about strategies, settlements, and material facts in a case, you cannot represent the client (and the intermediary may waive the attorney-client privilege for the client).
People who try to hire you to represent someone else. Yes, this is routine and usually is ethical, but as in the prior example, be very careful. You must speak with the actual client to obtain the client’s consent to the representation, as well as to objectives of the representation, such as filing litigation or accepting a settlement, and to ensure that the actual client has the capacity to retain you (assuming the person who is trying to hire you does not have a power of attorney for the actual client). Also be wary of other lawyers who seek to retain you to serve as local counsel but refuse to permit you to communicate directly with their client. Explain to these lawyers that if your firm name will appear on pleadings, you ethically must confirm that the client consents to your participation.
People who give you too many versions of the “facts”—from the very first consult. Prospective clients in stressful situations understandably may confuse facts, but if a prospective client cannot keep the facts straight in the initial interview or gave the receptionist a whole different story at the time of booking the consult, be wary. Explain to the prospective client that unlike what might be seen on television or the internet, lawyers actually cannot help clients lie—either in court or to other people. Rules 3.1, 3.3(a), 3.4, 4.1, and 8.4 prohibit lawyers from lying.
People who need to reschedule the initial consult more than once. Everyone has an occasional flat tire, emergency meeting, or illness, but a prospective client who cannot prioritize a consult with a lawyer is one who most likely will have difficulty meeting other deadlines during the representation. Avoid this stress. Explain to existing clients that deadlines are not suggestions in litigation and not only may the client be charged for missing meetings with you but could be sanctioned by a judge. Before the 1998 NFL Draft, top prospect Ryan Leaf blew off his first meeting with the Indianapolis Colts. They drafted the ever-punctual Peyton Manning. Leaf was out of the league in three years, while Manning became an all-time great.
People who are belligerent or rude with your staff. In the category of “life is really too short,” lawyers spend far too much time appeasing rude clients—and even more time having to replace qualified staff who quit because of rude clients. Encourage candor from your staff about how a prospective client treats them. If the potential client is rude, surly, cursing, or otherwise belligerent, decline the representation.
If a lawyer ignores all of the previous advice (or the new client conveniently conceals his or her true personality at the consult) and nevertheless represents a demanding client, what are the parameters of what the lawyer must accept and when is it time to terminate the representation?
Clients who insist on filing meritless or false claims. Clients hire lawyers to know the law—even if the client is a lawyer. Do not assume the client knows that his or her arguments are frivolous or cannot be supported by existing law. Explain why something cannot be submitted to a court or opposing party, based on the law. Ideally, this conversation begins at the beginning of the representation to set the legal and ethical framework for the relationship going forward and, most importantly, to manage the client’s expectations. But what if you explain that a certain claim or defense cannot be pursued because there is no good-faith basis in the law or the facts (e.g., Rule of Professional Conduct 3.1 and Rule of Civil Procedure 11) and the client insists? The answer is “no.” Clients do not control filing meritless claims—the lawyer does.
The client may even threaten to file a grievance or sue for malpractice, which is good for the lawyer because that then creates an actual conflict of interest under Rule 1.7 that may require the lawyer to withdraw from further representation! If a client insists on having the lawyer engage in conduct that would violate Rules of Civil Procedure or Rules of Professional Conduct, the lawyer must move to withdraw from the representation, citing Rule of Professional Conduct 1.16(a)(1), which says a lawyer “shall” withdraw from representation (or decline a representation) if the representation would violate the Rules of Professional Conduct. This is all the lawyer can say in a motion to withdraw—“noisy withdrawals” are not a thing anymore. Citing the rule should indicate to the bench that the lawyer has a serious problem and cannot continue representing the client. Do not attach to the motion to withdraw the client’s ranting emails insisting on filing a frivolous claim or threatening a bar charge—that is going too far in disclosing client confidences.
Sometimes when a lawyer explains to a client that the lawyer will need to move to withdraw if the client insists on taking meritless positions, and that the client will need to get a new lawyer up to speed, the rational client will realize he or she can’t pursue baseless positions.
Clients who bully staff. Clients frequently are on their best behavior with their lawyers but disclose their true temperaments to firm staff. Train law firm staff to be professional and polite—at all times—but to also notify the responsible lawyer if a client harasses them, yells or curses at them, or in any way causes staff members to feel uncomfortable or threatened. Call these clients immediately after an incident and warn them that such behavior is unacceptable and will result in termination of the representation if it occurs again. And follow up that conversation with an email, confirming the same. Legal matters can be stressful—acknowledge that—but remind clients that your staff are part of the legal team trying to represent them and bullying them is unacceptable—so is becoming too friendly with your staff. Boundaries are important in all professional relationships.
Clients who insist on taking positions or sending demands simply to harass the opposing party. Again, like the clients who want to file frivolous positions, give these clients the benefit of the doubt—once. Clients may have a skewed perception of how litigation is supposed to work, based on how they might function in the business world. Explain to clients at the beginning of the representation that this isn’t Tik Tok or a board room—you can’t do things that are intended purely to burden or harass the other side. There’s actually a rule for that! Rule 4.4(a) prohibits engaging in conduct that has a primary purpose of harassing or burdening another.
Clients who lie, causing you to submit false facts in a pleading or at oral argument. It’s never a fun day when the lawyer finds out from another source (usually opposing counsel) that factual statements made in a pleading, oral argument, or other submissions to a tribunal are false. In civil cases, there is no flexibility—the lawyer must correct the record. No, the lawyer can’t just file a motion to withdraw and run without fixing the false statement (and hope no one notices until after the lawyer is withdrawn).
If a court will continue to rely on a false statement of material fact, the lawyer must correct the record . . . no matter what the client says, no matter what the client threatens, and no matter how much it will harm the client’s case. Rule 3.3(a) requires that lawyers not submit false statements of material facts, and if they come to find out after the fact that they did, lawyers must correct the record. Again, this is an important topic to discuss with the client at the beginning of the representation—tell the client to give you the actual facts—no matter how bad—and you can then deal with them. Explain Rule 3.3 to your client in real-world terms; if you come to find out that the client submitted false facts, you will call out the error and that will be far worse than if you just knew it at the beginning and dealt with it. Once the false statement is corrected, then you must consider whether this is a client you want to continue representing.
Football coaches often talk about the need for “alignment.” If the owner, the coach, and the players don’t share the same priorities, it’s almost impossible to achieve success. The same is true in the legal profession. Make sure that you and your client are aligned before you step on the field. If you don’t, you might need to sack the client.
