Wisconsin Lawyer: What Keeps You Awake at Night?: How can I avoid problem clients or ethically disengage from representing one?:

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    What Keeps You Awake at Night?: How can I avoid problem clients or ethically disengage from representing one?

    I’ve heard horror stories about clients who don’t pay bills, return phone calls, provide information, or timely follow through on actions needed to advance their legal matter. Still other stories recount clients making pests of themselves by too frequent phone calls, or worse, trying to intimidate lawyers or their employees, or disrespecting the court. I’m a new lawyer and just opening a solo office. How can I ethically disengage from representing a problem client, and better yet, how do I identify and avoid problem clients in the first place?
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 10, October 2008

    What Keeps You Awake at Night?

    How can I avoid problem clients or ethically disengage from representing one?

    I've heard horror stories about clients who don't pay bills, return phone calls, provide information, or timely follow through on actions needed to advance their legal matter. Still other stories recount clients making pests of themselves by too frequent phone calls, or worse, trying to intimidate lawyers or their employees, or disrespecting the court. I'm a new lawyer and just opening a solo office. How can I ethically disengage from representing a problem client, and better yet, how do I identify and avoid problem clients in the first place?

    Sidebars:

    Ask Questions to Learn How the Client Works and Behaves

    Michelle A. 
Behnke

    The first few questions I ask a potential new client are: 1) What is the nature of the issue? 2) How did the person get my name? 3) What is the time frame? 4) Has the person been working with an attorney to this point and if so, why is he or she making a change? The answers to these questions often give me insight into how the client works and behaves. Does the potential client do things at the last minute? Does he hesitate in answering my questions or hedge in giving an answer? Has she changed lawyers twice already? These are red flags for me, and I will not likely take on the client.

    Refer to your engagement letter if you took on a client who becomes a problem. The engagement letter should outline the lawyer's duties and the client's duties and clearly indicate that if the client fails to cooperate with the attorney (e.g., does not provide accurate information when requested or pay the bills), this can be the basis for terminating the representation. The lawyer should discuss with each new client these duties and the consequences of not adhering to them.

    You also should discuss fees at the beginning of the representation. Someone who expresses reservations about your hourly rate or any fee estimate at the beginning of the matter is not likely to suddenly have a change of heart and begin paying the bill on time without complaint (even if he gets a good result). Often lawyers avoid talking about fees at the beginning of the engagement or don't listen carefully to pick up on the potential client's reservations.

    Don't forget that SCR 20:1.16 outlines what a lawyer must do when declining to represent a potential client or disengaging from a client if representation has already commenced.

    Michelle A. Behnke, Michelle Behnke & Associates, Madison

    There are More Problem Behaviors Than Problem Clients

    Michael F. 
Brown

    I am a younger lawyer and had to learn about these issues by making mistakes. I hope my mistakes will save you some, as case selection will be very important in establishing your effective practice.

    I've found there are not so much problem clients as there are problem behaviors. For example, a problem behavior is when a prospective litigation plaintiff (client) expects a financial settlement that is higher than the legal damages available. This expectation often can be corrected, if on day one the attorney identifies the issue and politely explains why it is problematic. However, if a prospective client has many problematic behaviors, you may have to refuse the case. If you are addressing too many red-flag behaviors with too many clients, you may lose an insurmountable amount of time and revenue.

    Be most wary of these red-flag behaviors. The client:

    • tells you how good the case is rather than stating the facts and waiting for your opinion;
    • has had prior attorneys and has several complaints about each;
    • is rude, irrational, or untimely in his or her interactions with your firm;
    • states facts that do not seem credible or logical;
    • has overly high expectations but is overly reluctant to pay you (these two behaviors almost always go hand-in-hand); or
    • cannot articulate his or her goals when asked to do so.

    The more of these behaviors you see in a client, the greater likelihood of future nightmares in handling the legal matter.

    Michael F. Brown, Peterson, Berk & Cross S.C., Appleton

    Learn from Red-Flag Scenarios

    You need to identify problem clients before the attorney/client relationship is established if at all possible. Learning to recognize them will come with experience, but some scenarios should immediately raise a red flag:

    1) The client is angry. If there is obvious or suppressed rage about the situation, the lawyer should carefully vet the client before accepting the case. Can you calm his anger and get him to look dispassionately at his case? Does she repeatedly return to the source of her anger and let emotions rule her judgment? If you do not have complete control of angry clients, they may eventually turn their anger on you.

    2) The client has high expectations. Lawyers must find out about their client's case and the client's expectations. If the expectations are too high, and you cannot immediately lower them, you will have a problem. Never make the mistake of telling the client what you think you can accomplish before you have seen the other side's story. It is better to start with low expectations and look like a hero when you better them. If you set the bar high and fail to clear it, the client will see you as the reason the result was so "bad."

    3) The client is on his second lawyer. Sometimes a client will have started with a bad lawyer, but that is the exception rather than the rule. Clients most often change lawyers because they aren't getting the results they want regardless of the facts, or the lawyer is refusing to take actions that the lawyer feels are unethical or unproductive. Rarely should you accept a case already in progress.

    4) The client cannot immediately provide a reasonable retainer. If she can't come up with it now, she will not come up with it in three weeks or at the end of a case. Get your fees in advance for almost all matters, and if the matter takes longer than you expected, get the retainer replenished (this should be in your contract). It is better to not get the client than to work for free.

    Raymond G. Meyer II, Koenen & Meyer, Port Washington

    Staff Impressions Help Screen Prospective Clients

    Ross A. Seymour

    I rely on the impressions of my staff to avoid being hired by problem clients. My staff helps screen new clients over the telephone. How a prospective client treats a staff member in an initial call can be a good indication of how he or she will behave as a client. Also, especially in areas like family law, where my staff has a lot of client contact, I'll include the staff member in the initial meeting. Having a second set of eyes and ears helps me make a better decision about whether to take on someone as a client.

    Despite these steps, problem clients do get through. While it is difficult, I will drop a problem client sooner rather than later. After 20 years of practice, I have a good sense when a problem client is just going through a bad patch as opposed to exhibiting irredeemable behavior. Although I've lost fees doing this, WILMIC and my staff are much happier.

    Ross A. Seymour, Birnbaum, Seymour, Kirchner & Birnbaum LLP, La Crosse

    Lay the Groundwork for a Good Working Relationship but Trust Your Gut

    Sean 
M. Sweeney

    There is no surefire way to tell if a client is going to be a problem, but there are things you can do to minimize the problems and to make your exit easier if need be. The key to all of it is being "upfront." That applies to payment as well as expectations. The number one rule is to use your client trust account and to get payment upfront. The value of legal services from a client's perspective decreases exponentially once the work has been completed. They no longer need you; they no longer feel they need to pay you. The other part of it is to be upfront with your expectations. Explain how the lawyer/client relationship works, how you expect the client to contribute to the case, and that if the client doesn't contribute to the case, you may have to withdraw your representation.

    Lay the groundwork for a good working relationship and you will do very well. Many disputes between clients and lawyers stem from different understandings and expectations of the relationship; if you ensure that everyone is on the same page from the outset you will minimize your exposure to problem clients.

    Finally, simply trust your gut. Do not be afraid to turn someone away if he or she rubs you the wrong way or if you think the person may be a problem. Your health, welfare, and sanity are a lot more important than the fee you could earn from one extra client that you had a feeling would be bad from the start.

    Sean M. Sweeney, Tosa Law Office, Wauwatosa




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