Wisconsin
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
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
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
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
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
Wisconsin
Lawyer
