Red flags and white whales: Beware of problem clients

November 2017 | Eye on Ethics

by

Some years ago, never mind how long precisely, a man named Ahab appeared at my office asking if I would take over a personal injury matter for injuries resulting from an automobile accident. He walked with a limp and appealed to my sense of fair play and compassion and so I accepted the case, even though he brought it to me at the 11th hour before a hearing was scheduled after the previous lawyer had withdrawn from the representation.

Ahab reassured me, asserting that he was being pressured to pay advance fees and that the lawyer may have had a discriminatory intent when he withdrew from the case.

He also enticed me with the promise of a large retainer if I would agree to use all means at my disposal to pursue the matter.

Soon after I agreed to accept the case, Ahab twice failed to appear for appointments to discuss strategy. He also failed to provide the retainer he promised me and only seemed to be interested in “making his point” to the opposing party, the driver of the vehicle that struck him. To make matters worse, after having reviewed the accident reports and other evidence, I was also beginning to have doubts about Ahab’s version of the accident.

I would have liked to withdraw, but since we were on the eve of trial the court would not grant me permission to do so. 

Looking back, I wish I had quieted the impulse to take the case to gain business, and had looked a bit more carefully at Ahab’s story.

Many legal ethicists and legal malpractice lawyers agree:  the ideal response to a problem client is to just say no, right at the outset. This is optimal but difficult, since the ability to evaluate and decide on going forward with a new client is an acquired skill. Commentators and legal advice columnists also agree: Trust Your Gut!  But the quantity and quality of bad client stories available from lawyers lets you know that the gut is fine-tuned over time. However, being aware of certain warning signs can shift the odds against taking on a problem client.  While welcoming new business, keep an alert and evaluative frame of mind.

Some possible signals of trouble are as follows:

* A client who requires constant assurances and predictions about the cost of the legal services, and who continually manifests concern around the fee issue. Cost containment is all fine, but the basic fact is that the lawyer is selling services for money. If the transactional element of the lawyer-client relationship does not sit well, it could well lead to micro-managing down the road or to problems getting paid. An overly tight focus on cutting fees and costs will impact whether the lawyer can provide the appropriate representation at a rate that fairly compensates her for her work. Make sure the client can agree to a realistic timetable for work and a reasonable fee. A bad credit report or bad reputation for paying bills should tip this one into the “don’t take” pile.

* Clients who are out for revenge, “justice at last” or a big payday. Revenge and retribution may induce tactics that are not approved by the rules of professional conduct, and actions aimed mainly at upsetting or antagonizing the other side can violate the ethics rules. See, e.g. Rules 3.1 Meritorious Claims and Contentions and 4.4 Respect for Rights of Third Persons. Furthermore, to the extent that such a client does not feel vindicated by the court system, he could seek vindication against the lawyer.

A big payday is a goal that should be evaluated realistically, taking into account the twists and turns of a matter and the unforeseeable factors that can alter the end result. If you don’t think the likely outcome to a case will satisfy the individual, you may want to reconsider having them for a client. A client who ultimately feels wronged by the representation may take it out of the lawyer’s fee. 

* A client who presents a matter that is outside your usual area of expertise. Commercial real estate may not sound that far-removed from traditional residential closings, but there will be a learning curve and you must account for it. Moving to a slightly less familiar practice area is best accomplished with the advice of a mentor or acquaintance who can level the playing field for you. See Rule 1.1 Competence. “Dabbling” in related or distant areas is a practice that brings malpractice or ethics claims against attorneys. 

* A client who has changed lawyers more than twice. There are bad lawyers out there. You can’t automatically fault a client for leaving one. But this can be part of the problem for you. The former lawyer may have made mistakes or damaged the potential of the case beyond repair. At a minimum, such a case can require extra work. And clients who continue to shop attorneys and second-guess throughout the case are more likely to sue for legal malpractice. You are offering services that are a blend of education and experience, and if the client can’t seem to settle down and receive your advice then he may never be happy. An ethics complaint or unpaid fee could follow. 

* Potential clients with a history of alcoholism, DUIs, drug use, gambling, a weak job history or financial problems including bankruptcies should cause the lawyer’s antennae to twitch. More than two of these factors call for a close evaluation of the person and the matter. 

* A client who exhibits pronounced lack of coherence in communicating to you about the matter, and who engage in fast, pressured speech, run-on speaking or present an incoherent garbled story of events, without allowing you to comment or question. Conversely, beware of clients who are overly passive, and do not volunteer specifics without the use of constant pointed questions. These individuals may not be capable of assisting in their case and may not be providing you with all the necessary facts. 

* Potential clients who want to impress you with their legal acumen, gained mostly from TV and the internet. At a certain level they never trust their lawyer’s expertise and want to second guess and direct how the case is handled, the legal theories to be used and often turn into micro-managers, making you take more time to get anything done. Some will redraft a contract until the original provisions are lost. This can be extremely aggravating and stressful.   

* Clients who, after having hired a lawyer nonetheless tend to ignore his advice, fail to timely provide information and documents and fail to appear for depositions. They also form an unwarranted belief that they own the lawyer and that no amount of twists and turns to his schedule and the legal process are too many. This undermines the climate of civility and mutual respect that are important harbingers for a lawyer/client relationship that is both beneficial to the client and workable for the lawyer.

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Problem clients can run the ship aground or at the very least take it off course. For further information on this topic, See, the chapter entitled Avoiding Malpractice (last updated in 2013 as it appears at page 301:1001 of the ABA/BNA Lawyers’ Manual on Professional Conduct. Other articles of interest include  The Bad Clients You Don’t Take Will Be the Best Money You Never Made, FiveLegal Clients from Hell and Handling Confrontational Clients.

This article originally appeared as the June 2015 ETHICSearch Tip of the Month.

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