Client selection is a topic that arises at many CLE programs. Some lawyers, especially newer ones, are hesitant to turn away business and don’t always recognize some of the warning signs associated with a client or case. Others like the idea of taking on a challenging case, even with the risk of difficulties down the road. However, accepting every client who approaches you with a legal issue doesn’t necessarily guarantee “success,” however you define that term.
Practicing law requires many skills, and if you are running your own firm, that certainly includes bringing business in the door. Developing or expanding your practice isn’t easy, especially for sole practitioners competing with larger firms. Given all these pressures to attract new clients, when should meticulous client selection come into play when determining whether to accept a case? Taking almost any case that comes along and practicing in areas of law that are somewhat unfamiliar to you are dangerous business approaches that you may ultimately regret.
Brian Anderson, senior claims attorney at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), preaches caution when taking on cases. “One of the most common phrases I hear when an insured reports a legal malpractice claim to WILMIC is, ‘I knew I should not have agreed to take that case.’ Careful client selection should include close scrutiny of every potential client and case that come to your attention. You should always ask yourself, ‘Can I really help this client? Am I ready to handle this matter all the way to its conclusion? Do I have the time and temperament to best serve this potential client?’ Only if all of these questions can be answered in the affirmative should you agree to handle the case.”
For some lawyers, especially newer lawyers, passing up business is not easy. It’s tempting to take everything that comes in, especially during tough economic times. Perhaps when a client presented you with a real estate dispute, you saw it as an opportunity to make some money and expand your practice at the same time, even though you had never done any litigation. Too many lawyers can be tempted to take a case outside their areas of expertise, thinking they need the case for financial reasons or even for survival.
For example, bankruptcy may be an area that will attract new clients, but are you really suited for that kind of work? Do you know enough about it to serve your clients well? Although it may be tempting to diversify, “dabbling” in an unfamiliar practice area may bring you more trouble than it’s worth.
Anderson says it’s not that you shouldn’t take on new areas of practice, but that if you do, make sure you can devote enough time to learn them. “Using a mentor or consulting with a more experienced attorney in that particular area of the law is a good idea. This may be the opportunity you need to learn and develop new expertise.”
Even for experienced lawyers, the seduction of a big payday can lead one to take a case outside of one’s competence, because of its size, its subject matter, or both.
Family law attorney Marta Meyers, of Boardman & Clark, Madison, says, “I was less selective when first starting out. I am sure most lawyers are the same in that respect. The comfort and confidence to be true to yourself is hard to get to in those first few years of practice when you are learning the ropes. It took me several years to be more assertive in reflecting my own personal style when representing clients. I have had fewer headaches and moments of angst as the years go on.”
Meyers says screening potential clients carefully is extremely important. “We allow up to 1.5 hours for initial conferences, and there is a reason for that. We have a lot to talk about. Sometimes it is part interview, part consultation. Both the client and the attorney get a pretty good feel regarding the ‘fit.’ It tends to work out as a mutual selection process.
“I have had potential clients often ask me questions like: ‘Can you be a bulldog?’ or ‘Will you be an advocate for me?’ or ‘Will you be aggressive?’ I have learned over the years to be myself. I tell clients that I am always their advocate, assertive when necessary, and that I am always professional. I also tell them that I believe in the necessity of being respectful to all parties, counsel, and the court. This is a key component of my philosophy. They can interpret these statements – they are not sympatico with the adjective ‘bulldog’ but I will let the client draw his or her own conclusion. But I do try to let them know that I am always trying to protect and promote their best interests.”
Anderson says a high number of malpractice claims are directly related to dabbling. According to WILMIC statistics, approximately 60 percent of the claims involve lawyers who practice less than 20 percent of the time in the area for which malpractice is alleged. Conversely, lawyers who practice almost exclusively in an area of law account for less than 8 percent of claims. Anderson says, “Don’t be afraid to refer a case if you do not have the required expertise. There are times when you simply have to turn away business – times when you just are not the right lawyer to handle a client’s matter.”
Client Selection: 7 Warning Signs
Think hard and fast about accepting a client if any of the following warning signs are present:
- The client’s matter is outside your areas of expertise and competence. Avoid dabbling.
- You do not know all the facts. Do the research first, take the case second.
- The client has attempted to hire another lawyer before coming to you.
- The client has unreasonable expectations about the outcome. Don’t overpromise.
- The client doesn’t want to listen, acts like they know everything, or blames other people for their problems.
- The client comes to you very late in the case.
- The client has been “fired” by a lawyer on the case before retaining you.
Often, cases can turn out well even if you took on a client about whom you knew very little. But sometimes, poor client selection can blow up on you. Too often, lawyers take a case before they know all the facts or have elicited as much information from the client as is really needed. Always do the research first and take the case second.
There are some general warning signs that all lawyers should keep in mind. First, if the client has attempted to hire another lawyer before coming to you, it may be an indication that the client will never be satisfied no matter who is representing them.
If the client has unreasonable expectations, there could be trouble ahead. Anderson says every case sounds the best it will ever be when the lawyer and the client first meet. “You only hear the client’s side and what the client wants you to know. Only later, after you take the case and begin investigating the facts do you learn the downside.”
It’s also important to not overpromise. This can only cause problems down the road. Then, the client’s high expectations will be tough to meet.
If the client doesn’t want to listen, acts like he or she knows everything, or attributes all problems to other people, you are in for a long, difficult case. Meyers says those are clients you may be better off declining. “A few warning signs I pay attention to include a black-and-white view of the world, especially where the client is 100 percent on the side of ‘right’ and his or her spouse is 100 percent on the side of ‘wrong’; an inability to see any other point of view; and having unrealistic expectations as to what the outcome may be. I will say that I think it is usually the client that will turn me down when I don’t accede to their point of view or wholeheartedly endorse their unrealistic expectations.”
I have learned over the years to be myself. I tell clients that I am always their advocate, assertive when necessary, and that I am always professional.
– Marta Meyers
Another major red flag, says Anderson, is a client who is hiring a lawyer very late in the case. “In hindsight, the lawyer’s initial concern ends up being valid and is supported by the fact that the attorney never had the time to adequately underwrite the potential client. A claim or grievance is more likely to arise out of a matter where the attorney was unable to make a knowledgeable determination that the client matter was one that the lawyer felt comfortable undertaking in the first place. A claim recipe for disaster is a lawyer who is retained at the 11th hour in a case with deadlines looming or with a trial date already scheduled.”
Anderson points out that another risk to consider, before agreeing to take on a case, is whether the potential client has fired or been fired by a lawyer on the case before your retention. “Requesting your potential client’s consent to speak with prior counsel is often a good idea and can help you better understand the nuances of the case that you are considering taking. If the prospective client has gone through a number of attorneys and has a history of suing lawyers, the reality is that the case is unlikely to turn out any better or differently for successor counsel.”
Meyers says, “I have handled these in a few different ways: 1) coaching the client on how to continue working with their original attorney and giving the client a second opinion; 2) co-counseling with their original attorney of record, who continues to act as the primary attorney but has some assistance toward the end in getting the case resolved; 3) getting the opposing counsel’s agreement to extend deadlines before agreeing to represent the client; 4) refusing to be an attorney of record at the 11th hour if the case is way too complex for my representation to be helpful; or 5) jumping in at the 11th hour if I am confident that the issues are not that complex and I can actually help them to get the case finalized, and my calendar allows it.”
If the client has attempted to hire another lawyer before coming to you, it may be an indication that the client will never be satisfied no matter who is representing them.
When taking on a case that previously involved a different lawyer, Anderson cautions that the law in Wisconsin governing legal malpractice claims is not forgiving to the lawyer who has the “last chance” to prevent the harm, even if an earlier lawyer was negligent and should have handled the matter differently before the successor lawyer’s involvement.
In Seltrecht v. Bremer, 214 Wis. 2d 110, 571 N.W. 2d 686 (Ct. App. 1997), the Wisconsin Court of Appeals ruled that when a client is represented sequentially by two lawyers, both of whom were arguably negligent with respect to the same matter, the second lawyer is responsible for any damages if he or she could have prevented the client’s harm. “Although an attorney may feel sorry for a client and want to help them,” Anderson says, “the court’s decision in Seltrecht creates a situation where the lawyer who decides to get involved late does so at his or her own peril.”
Some of the claim issues that WILMIC staff have observed affecting successor counsel include the following:
The attorney does not have the complete and accurate file materials needed to determine whether the underlying matter can be handled competently and is meritorious.
A misunderstanding developed between the prospective client and the lawyer at the outset regarding the scope of retention or whether an attorney-client relationship was ever established when the deadline is missed.
The lawyer did not properly vet the new matter to recognize a conflict of interest involving a former client, due to time constraints at the time of the initial intake.
The initial intake information is incomplete, or a proper investigation, that is, one that would enable new counsel to determine whether he or she has the time and overall competency to diligently prepare and handle the case, was not done.
Necessary experts were not retained or consulted with, or dates were missed on pending litigation matters, severely undermining the lawyer’s ability to successfully prosecute the client matter.
Interested witnesses were not interviewed or their statements not secured, creating difficulties in the evaluation and prosecution of the case.
The client’s expectations might have been improperly set at the outset and, as such, the client expected an outcome that the lawyer was not able to deliver.
If you think you need to take every client, you should think twice. It may look like a sure payday at the time, but further evaluation could prove otherwise.
As Anderson notes, “Helping clients in distress is a noble goal and likely why many lawyers decided to start practicing law in the first place. When a lawyer gets involved with a client matter that is already pending or has deadlines that are about to toll, it may quickly be the lawyer who is in distress. A legal malpractice claim or Office of Lawyer Regulation grievance can negatively impact your profitability, reputation, and stress level.
“Careful client selection should include increased scrutiny when you are getting involved, for the first time, late in the dispute. Consider the red flags noted above and the rule of law from the Seltrecht case, before agreeing to jump into a matter.”
Malpractice Claims Issues Affecting Successor Counsel
Be aware of the following claim issues that may arise if you are coming to a case as successor counsel:
- •You lack the complete and accurate file materials.
- •There is a misunderstanding at the outset regarding the scope of retention and whether an attorney-client relationship was ever established.
- You did not properly vet the matter to recognize a conflict of interest.
- The initial intake information is incomplete or lacks a proper investigation.
- Necessary experts were not retained or consulted.
- Dates were missed on pending litigation matters.
- Witnesses were not interviewed or their statements not secured.