Avoiding Headaches: The Problem Client
Every lawyer has had to deal with a problem client (or two). Over the years you learn from experience how to spot them and when to fire them. What are the warning signs of a problem client? What can you do in pre-intake and intake to identify potential issues? Assiduous use of agreement letters can help with communications, as well as ensure a paper trail if necessary. If it becomes necessary to terminate a relationship with a client, what do you need to know?
Recognizing Potentially Difficult Clients
Roberta Tepper, Director of the Lawyers Assistance Program at the State Bar of Arizona, suggests: “a lawyer is not a bus, you don’t have to pick up anyone just because they are standing at the bus stop.” A difficult client can have a very negative effect on a lawyer’s mental health, time management, and ledger. The client who has no boundaries and calls at all hours of the day and night. The client who second guesses your decisions. The client who does not meet deadlines. The client who cannot or will not pay. What are the early warning signs that you should seriously consider whether to take a client?
John T. Kitch, at Cornelius & Collins, LLP, provides a lengthy list of “types” to help identify potentially difficult clients. A sampling of the types include:
- The Wimpy – “I’ll gladly pay you Tuesday for a hamburger today”.
- The Serial Client – You are the third or fourth lawyer.
- Last Minute Charlie – He has one day left to file to beat the statute of limitations.
- The Crusader – “It’s not the amount of money, it‘s the principle of the thing”.
- The Revenge Seeker – He will want you to do things that do not advance the case and may even hurt it, just to cause the other side pain.
- The Blue Light Special Shopper – Promises he will “do a lot of work himself” – but the quality is awful and not what you need and will question every charge you make.
- The Independent Contractor – She wants you to handle the case but will call the opposing party to work things out; will argue with the other side and give away information.
- The Cash Cow Client – promises a long and lucrative relationship if you will cut him a cheaper deal now on this matter.
See Mr. Kitch’s full list of types here, reprinted with permission from the ABA: “Red Flags” Avoiding the Bad Client”
At a recent CLE for the Orange County Bar Association, attorney Gary Poole reminded the audience to also trust your instincts. He described a potential client he had a bad feeling about and when going to meet with him at his residence the potential client appeared in a green velour bath robe. He uses that indelible image to remind himself to remember to read the warning signs.
Considering representing family? In addition to spotting issues with potential clients, Jim Calloway, Director of the Law Office Management Assistance Program for the Oklahoma State Bar, provides some food for thought in his guest blog post “Client Selection: How to Red Flag High-Risk Clients (Including Relatives) And Build a Solid Client Base”.
Pre-Intake and Intake
How do you uncover potential bad clients? Phone and in person interviews can often unearth issues but using tools during pre-screening and intake questionnaires can help.
Pre-screening questions may include determining if the matter is something your firm handles, whether the potential client has previously hired a lawyer (or fired a lawyer) for this matter, whether they can afford your services, whether there is a statute of limitations pending, and assess their expectations. Pre-screening includes some intuition, so a phone call or video conference may be the best approach. On your website or social media pages you could use a chat bot. Be clear in all communication that you do not yet represent the person.
If the client seems like a good fit for your practice, you can run a conflict check. If they do not present a conflict and seem like a good potential client, you can move forward with scheduling an intake consultation. You may choose to send an intake questionnaire in advance of the consultation. You may be having the consultation via video conferencing or in person. Based on the new opinion from the ABA Formal Opinion 492, NC RPC 1.18 Duties to Prospective Clients, RPC 246 (1997) Duty of Confidentiality Owed to Prospective Client and NC 2006 Formal Ethics Opinion 14 Payment of Fee for Consultation, law firms should limit what information is gathered from a prospective client. You may also learn more information during a full intake that could represent a conflict. Again, during the pre-intake and intake process make it clear you do not yet represent the potential client.
Lawyers Mutual provides an excellent Client Intake Guide with tips for interviewing clients with sample intake forms and sample interviews.
Get It in Writing
If you decide to proceed with the matter and take on the new client, make sure to send an engagement agreement including fee arrangements to be signed and returned. You can outline how and when you prefer to communicate, specify who it is that you are representing, explain your fees, and describe the scope of the matter. This will go a long way to help start the representation with a clear understanding of your responsibilities, and that of the client.
If you speak with a potential client and decide not to represent her, make sure to send a non-engagement letter. If you have a conversation with someone about a matter but decide not to represent the client, make sure he knows that. Without a non-engagement letter, the prospective client may assume that you, having gathered the necessary information, are working on the case. Roberta Tepper suggests getting a read receipt or some other way to track (and prove) the prospective client received the document.
At the end of representation send a closing letter. This will help alert the client that you consider the matter closed, that you do not represent her in perpetuity, and begins the clock on records retention (and malpractice statutes of limitations if applicable).
Lawyers Mutual has great advice and sample letters in the Attorney-Client Agreements Toolkit.
Firing a Client
Jeffrey Allen and Ashley Hallene in their article for the GP|Solo eReport June 2021 “Breaking Up (with a Client) Is Hard to Do” outline effective strategies for getting out of a bad relationship with a client. They suggest planning a breakup from the start by documenting any problems you may have, communicating effectively with the client to express concerns early for issues like non-payment or lack of cooperation, and return the file to the client immediately if you terminate the relationship and do not try to hold it for ransom to get the client to pay the bill.
Lucian T. Pera, writing for ABA Law Practice Magazine, explains how to withdraw artfully and safely. He explains that withdrawal may be simpler if you are not counsel of record in court. If you are then you will need to notify the client AND the court of your intent to withdraw. Courts impose additional duties on lawyers who are counsel of record, and some courts may deny withdrawal, depending on circumstances. In your motion to withdraw to the court, Pera advices establishing the legal grounds for the motion and use the language in Rule 1.16 (Declining or Terminating Representation) – then stop. He also cautions to pay careful attention to the court’s local rules, if any.
Communicate and Adjust!
While there are certainly difficult clients, lawyers can spot issues early in the representation and avoid them by effectively communicating and maintaining awareness of the progress of the matter. Make sure to return phone calls and emails, provide status reports, notify the client of any issues that arise promptly, and uphold your end of the bargain. Make sure to get the bills out promptly – so that if you do decide to terminate the relationship you are not also asking for the entire balance due at the same time.
Juda Strawczynski, Director at PracticePro, suggests regular written communication can help keep clients on track, and to correct your course as necessary if issues arise. Waiting and hoping something will change may only exacerbate the situation.
Be sure to document all communication with the client, including communications from your legal support team. Make sure that your staff keeps you alerted to any issues (missed deadlines, rude exchanges, lack of responsiveness, unpaid invoices) that arise.
Conclusion
Learn to recognize the signs of a potentially problematic client before you choose to represent her. Be clear in your intent and communication. Some attorneys worry about getting new business and will ignore signs of trouble because they fear turning away clients. However, a problem client will likely cost far more in the end than you will make. Lucian Pera in his article “Strong Loss Prevention in Tough Times” points out that rigorous and careful new business intake is more important than ever during times of economic hardship.