| Oregon State Bar Bulletin — JULY 2008 |
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"It’s better to not do the work and not get paid
than to do the work and not get paid."
—Jay Foonberg
Representing clients you like: Is it realistic or just a pipe dream? If you are struggling in your practice or just starting out, practicing "door law" is very tempting. Before you succumb to the pressure of taking any client who crosses your threshold, stop and make an honest assessment. Are the client and the case a good match for you? If not, you may be taking on a future collection problem or potential legal malpractice claim.
There is no worse feeling than being stuck with a client you find distasteful or can’t trust who also happens to owe you money. The best advice I ever received in my career came from my first employer. "Don’t represent people you dislike or don’t believe in. The jury will always pick up on how you feel, no matter how hard you try to hide it, and it will hurt the client’s case. If you don’t like or believe in your client, why should they?"
I only ignored this sage advice once. It was my last pro bono case before joining the Professional Liability Fund, and I agreed to represent someone who was difficult to communicate with and had unrealistic ideas about how his complaints should be resolved. I felt committed and stuck it out, but both the client and the case took a toll. So, take it from someone who knows: don’t ignore this advice. Reduce the stress in your life and in your practice. Evaluate potential cases and clients with these factors in mind:
Who Referred the Client?
The referral source can speak volumes. Was it your best client,
whom you’d love to clone? Or did the referral come from the client
from hell? Always ask who made the referral or how the potential client
found you. If nothing else, it’s helpful to know which referral
and advertising sources pay off and which don’t.
Friends and Family
Are you taking the case simply because the potential client is
or knows a friend or relative of yours? Avoid these cases unless you
are confident you can handle the case and have a good feeling about the
potential client. Even then, you may find it difficult to be objective
or exercise client control. Ask yourself whether you would take the matter
if the client walked in off the street. If the answer is no, the case
is not for you. Help your friend or relative by referring them to another
practitioner who is better suited to address their legal problem.
Are You Overlooking a Potential Conflict?
Always check for conflicts when a potential client first contacts
you. A preliminary check of the potential client’s name allows
you to decline further discussion, preventing a crucial divulgence
of confidential information. After the initial interview, you will
have the names of other parties connected with the case. Run a second,
more thorough conflict check to be certain you still have the "green
light" to proceed with representation.
My Momma Told Me I Better Shop
Around
How many lawyers has your potential new client talked to about
his or her case? Clients who "shop around" without justification
should send your red flag to full staff. Does the client have a lousy
case other lawyers won’t touch? Is he or she perpetually dissatisfied
or unwilling to pay a reasonable fee? Perhaps the client is attempting
to meet with multiple attorneys to try to create conflicts for the
opposing party? Practice "BOLO." Be on the lookout for the
client who constantly changes lawyers or whose case has already been
rejected by one or more lawyers. Unless there is a reasonable explanation,
pass on the client’s case.
First, Let’s Kill All the
Lawyers
What is the client’s attitude toward lawyers or other
professionals such as doctors, accountants, bankers or lenders? Anger
and frustration can be quite understandable in the right circumstances,
but proceed cautiously if the client’s feelings seem disproportionate
to the problem or situation. A client who sees conspiracies around
every corner will be very difficult to work with.
It’s the Principle!
Sometimes it’s not the client’s attitude toward
professionals but toward the case that raises concern. If you take
on a client who wishes to proceed because of principle and regardless
of cost, you may find yourself pressed to pursue a case that you do
not believe in or, worse, find offensive.
The Expert
Clients who consider themselves experts on a matter will have
difficulty understanding why you must spend time and money doing factual
or legal research. They may be unwilling to hear what you have to say,
may not follow your advice, and could be among the first to complain
when the outcome isn’t what they hoped (even though you warned
them of the potential or likely results). Working with such a client
is challenging to say the least. Don’t take on "the expert" unless
you are up to it and feel confident you can exert proper client control.
The "Done Deal"
How many times have you heard the words, "Just look over
the contract and tell me if it’s okay." How can you possibly
judge whether the contract is "okay" without researching
the underlying transaction? Yet that is exactly what the "done
deal" client is asking you to do. If you choose to take on such
a task, document what you have been asked to do — and what you
have not been asked to do — in a letter or e-mail to the client.
If the transaction goes sour, you will be able to prove the limited
scope of your engagement.
Keep It Simple
"Keep it simple" is a close cousin to "done deal." The "keep
it simple" client ties your hands by not wanting you to "complicate
the matter" by anticipating and planning for problems. He or she
just wants (and often will only pay for) limited services. If you can
educate this client, and he or she agrees to pay your fee to do the
job right, go forward with representation. If not, proceed at your
own peril and thoroughly document the scope of your representation.
My Hearing Is Tomorrow!
The client who waits to consult with you until a deadline is
looming or who has an emergency of his or her own creation requires
special handling. Do you have the necessary expertise? Can you complete
the task accurately and timely? A last-minute court filing can lead
to mistakes, especially if you are relying on information given to
you by the client and have no time to verify the client’s version
of events. You should also keep in mind that accommodating an emergency
usually means pushing aside the work of existing (and hopefully paying)
clients. Sometimes this is acceptable; sometimes it’s not.
The Forgetful Client
If a client fails to bring critical documents to your appointment,
is he or she merely forgetful, or is this a sign of things to come?
The discovery process requires timely cooperation from clients, with
the possibility of sanctions when deadlines aren’t met. Even
when the matter does not involve litigation, a client who procrastinates
or is forgetful or disorganized makes the staff and lawyer’s
job more difficult. Will you have the time and energy to give this
client the extra hand-holding he or she needs?
Great Expectations
Clients
who are only out for revenge, expect a miracle, or believe they have
a million dollar case (when they don’t)
will be difficult, if not impossible, to manage. Proceed only if you
can bring the client back to earth and establish realistic expectations.
Who, Me?
Just as "done deal" and "keep it simple" are
closely related, the "who, me?" client is akin to "great
expectations." The client who cannot accept responsibility for
his or her actions generally wants to point the finger at others. If
you choose to represent this client, you may be the next target in
the blame game.
Communication Quandary
Occasionally you may run into a client who refuses to answer innocuous
questions or who challenges each question you ask. Careful judgment is
called for here. Is the client ill at ease or belligerent because he
or she is upset? Perhaps the client has something to hide. Whatever the
cause, can you break through the communication barrier? If not, take
a pass.
Money
Can the client pay for your services? A client’s financial
situation may warrant declining the case unless you are willing, at
the outset, to provide pro bono services. Sometimes the question isn’t
whether the client is able to pay, but whether you and the client
can agree on the fee arrangement. If you are having trouble defining
the financial parameters of the representation, you may be dealing
with someone who will find it difficult to make other decisions or
compromises.
Do You Have the Skill and Expertise
to Pursue the Case?
No lawyer can know every area of law, and getting up to speed
in a practice area you aren’t familiar with can be time-consuming.
It can also lead to a potential legal malpractice claim if you miss
a statute or make an error that a specialist in that area would not
have made. Decline the case, refer it out, or, at a minimum, co-counsel
with a colleague who knows the practice area.
A Balancing Act
Don’t assess new clients and cases in a vacuum. Consider
your existing caseload. Do you realistically have the time to take
on the new matter? If you are currently handling a number of complex
cases and don’t have colleagues to share the workload, now may
not be the time to take on yet another.
What Does Your Gut Say?
This is by far the most important consideration when evaluating
a new client or case. If your first impression is unfavorable, will
a judge or jury feel the same way? Lawyers who are sued for malpractice
almost always say that they knew at the outset that they should have
rejected the case. Trust your gut instinct, even if you can’t
pinpoint the reason for your reaction.
The next time you sit down with a potential new client,
reflect on these factors. Choose clients and cases that represent the
best match for you. The practice of law will be much more enjoyable,
and you will reap the rewards of working with
clients you actually like.
ABOUT THE AUTHOR
The author is a lawyer and practice management advisor with the
Professional Liability Fund.
©2008 Beverly Michaelis