Sept. 3, 2014 – Strategies can help attorneys deal with difficult clients, whether they have challenging personality traits or mental disorders, and employing those strategies is an important aspect of risk management, says one ethics expert.

Lawyers can set boundaries and expectations at the beginning of a representation, and should certainly do so through engagement letters that set expectations.

“Strategies, many of which can be incorporated into the law firm's policies and procedures, help the attorney provide competent representation under challenging conditions,” says Aviva Kaiser, assistant ethics counsel at the State Bar of Wisconsin.

But what if other issues exist? What if the client has a combative personality? What is if the client is narcissistic, antisocial, depressive, anxious or obsessive compulsive? What if the client has dementia? How does the lawyer deal with those types of issues?

Dr. Patricia Bromley, a psychologist and professor in U.W.-Platteville’s Department of Psychology, says lawyers can craft appropriate responses and communication strategies if they know the personality type or disorder that a client is exhibiting.

“Awareness is a big piece of this,” Dr. Bromley said. “Many lawyers are attuned to these types of issues and understand that different responses are necessary depending on the behavior, personality type, or disorder that the client is presenting.”

“If the attorney is not aware of the appropriate responses, understanding the resources available in the community would help the lawyer in assisting the client,” she said.

Dr. Bromley will discuss strategies that lawyers can develop and use in a panel titled, "At Wit's End: Representing Clients With Disorders of Thought, Reasoning, Memory, and Emotion," at the Wisconsin Solo and Small Firm Conference, Oct. 23-25, in Wisconsin Dells.

Dr. Kenneth Waldron, a clinical psychologist at Monona Mediation and Counseling, will explain the tools to counter problematic personalities in a separate session, titled "Dealing With Difficult People: Difficult Clients, Difficult Attorneys, Difficult Others," with a part two session that walks through various hypotheticals.

Kaiser and State Bar Ethics Counsel Tim Pierce will also be on hand to talk about the attorney’s ethical obligations in these types of representations, including circumstances in which the lawyer feels that terminating the representation is the only appropriate response.

What am I Dealing With?

The first step in crafting appropriate responses and communication strategies when dealing with challenging clients is to understand the challenge itself.

“It may be difficult for a client with depression to return a phone call or to open a letter from a lawyer or the court,” said Bromley.

For clients with obsessive-compulsive disorder, the client may present a challenge by obsessing over the case or the attorney’s work. Or, the client may be preoccupied with other obsessions and compulsions, making communication with the client difficult.

“It can be immobilizing,” Dr. Bromley said. “Either the person will be overly meticulous about what the attorney is doing, or they may be so preoccupied with whatever their obsessions and compulsions are, that they will have difficulty diverting from that in order to attend to the legal matter.”

In addition, narcissistic clients may not empathize at all with an attorney’s work-life balance, and an antisocial client may not care.

These challenging clients can impact an attorney who is trying to set the appropriate boundaries and expectations with clients.

“If it appears that a client intends to be highly involved and has a sense of entitlement, that client may want to be in constant communication with the attorney,” Kaiser said. “Communication, or lack of communication, is the single most cited reason for client dissatisfaction, and one of the most frequent reasons for attorney discipline.

“Consequently, it is crucial to discuss and to include a provision in the engagement agreement about both the method of communication and the standard time period for responding to or acknowledging client communication,” Kaiser continued.

But if these measures aren’t enough, Dr. Bromley says the lawyer can take other appropriate steps. Referring the client to community resources, such as clinical counselors or medical doctors, can help the client deal with the challenging behavior that is affecting the representation or other aspects of the client’s life.

“If the lawyer can mobilize the available resources, such as family, spouse, or direct the client to community resources, that can be very helpful to the client. But it also helps the attorney because then you’ve got more people watching the situation,” Bromley said.

If the client sees a counselor, a client waiver would allow the lawyer to speak with the counselor directly on ways that a legal representation can be handled differently, based on what the counselor knows about the client’s situation and challenging disorder.

Or the lawyer can contact an outside counselor or psychologist to discuss how the lawyer might better deal with the challenging client, based on the problematic behavior.

“When these situations arise, I would also encourage lawyers to get consultation from another attorney, a counseling clinic, or a practicing psychologist,” Dr. Bromley said. “Providing consultation to other professionals is part of our work.”

Dr. Bromley said some lawyers take this holistic approach, assisting clients with aspects outside the legal representation. For others, she says, paying some attention to these issues will be helpful, in terms of employing strategies to make the lawyer’s life easier.

Of course, if all else fails, Wisconsin Supreme Court Rule (SCR) 20:1.16 determines when a lawyer must or is permitted to terminate the representation.

Mandatory and Permissive Withdrawal

Kaiser says the lawyer must withdraw when continued representation would result in the violation of the Rules of Professional Conduct for Attorneys or other law.

In addition, the lawyer must withdraw if the lawyer is physically or mentally unable to provide effective representation, or if the client discharges the lawyer.

Kaiser says the circumstances get trickier when withdrawal is permissive. Withdrawal is permissive in the following circumstances:

1. withdrawal can be accomplished without material adverse effect on the interests of the client;

2. the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

3. the client has used the lawyer's services to perpetrate a crime or fraud;

4. the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

5. the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

6. the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

7. other good cause for withdrawal exists.

If one of these situations is present, Kaiser says the lawyer must notify or seek permission from the proper tribunal to terminate the representation.

In addition, upon termination of a representation, SCR 20:1.16(7)(d) says “a lawyer shall takes steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. …”

This last provision, including a requirement to give the client notice of the withdrawal, is the source of numerous cases involving actions against attorneys. Failure to provide the client’s file to the client or the successor lawyer is also the source of past reprimand.

In addition, there are disciplinary cases involving a lawyer who withdrew from a representation but failed to return advance fees the lawyer did not earn.

If there’s ever a question about the lawyer’s duties involving withdrawal from representation, or other ethical issues, the State Bar’s Ethics Hotline can help.

Kaiser, assistant ethics counsel, and State Bar Ethics Counsel Tim Pierce are available by email and by phone at (608) 229-2017 or (800) 254-9154.