Tuesday, November 23, 2010

Breaking Up is Hard to Do. Should You Fire that Problem Client?

The Nutmeg Lawyer was honored to receive a mention in the Opening Statement's section of this month's issue of the ABA Journal.   The following is a recap of the post that was referred to in the article:

You're Firing Me?!
It's Not Me, It's You
As a newly minted lawyer, I recall meeting with a prospective client who was recently fired by his attorney.  As a idealistic young whippersnapper, I was astonished. How could a fellow member of the bar abandon a person in need? Were we not sworn to defend the constitution?  Were we not duty bound to give counsel to the down trodden?  Did this other attorney lack people skills or was he just a bad lawyer?  Surely, I could do a better job.  Besides the ink hadn't even dried on my law degree.  Frankly, I was willing to take anything that came through the door with a pulse.

The prospective client was a kindly elderly gentleman who bore a striking resemblance to Santa Claus.  He was facing an evading charge after deciding to leave the scene of an accident.  Apparently, Old Saint Nick had backed into his neighbor's car and fled.  After reading the arrest report, I determined that his matter was not a complicated one. Why was this case dragging on for months?  It had already been on the docket seven times.  This other lawyer must be padding his bill or didn't have the chops to do criminal defense work. 

Kris Kringle claimed his lawyer quit on him because he had taken on a more profitable client that required his undivided attention.  He simply no longer had time for the poor old man.  "What an unethical charlatan!" I thought. I wasn't going to let this other guy sully the fine reputation of my chosen profession  I even quoted the guy a ridiculously low flat fee.  (What could I do?  It was Santa).   The client was estatic and justice would be served.  I would be the hero and would remain off the naughty list.  On my very first appearance, I was able to persuade the state's attorney to dismiss the matter if my client could provide restitution to the victim.  Thirty five dollars to be exact.  With a cocky smile, I conveyed the offer to my client and stood ready to bask in my client's accolades.
Artist's Rendering

"Absolutely not! he bellowed.  "He shouldn't have parked there and no one saw me do it."  My smile quickly faded as the old man began frothing at the mouth. "This is worse than the terrorism in Iraq.  I thought this was America. Is this communist Russia!  I can see you are in kahoots with the prosecutor just like the last guy. What kind of lawyer are you?  Without a witness, they have no case. Didn't they teach you that in law school. I want to take this to trial!" "  I felt like I had just walked onto a mine field wearing oversize clown shoes.
A trial?  Was this guy crazy? 

 If I only had contacted previous counsel, maybe I could have gotten a heads up on this guy.  The previous attorney could have tipped me off that I should prepare for a litany of unreasonable demands, unending phone calls and unscheduled visits.  With my flat fee arrangement, the added work would basically be pro bono.  This little case would take up the majority of my time and would cause me to rethink my choice in practicing law.  Were all clients going to be like this guy? 

A good screening process can help you
avoid potential problem clients
With a few years of practice under my belt, I now understand  that one can expect to run into an occasional nut or two.  Had I employed a better screening process, I may have even avoided the situation altogether. I would have learned about my client's "truth binder,"  a case manifesto he prepared overflowing with pages of laminated "evidence."  The truth binder included photos, city plot plans and even NASA research on celestial body positioning (after all, how could my client be guilty if the sun was in his eyes).

Now, I am not suggesting that you should fire every client that gives you a little trouble.  Instead, I am suggesting that there are situations where one is quite justified to "fire" a client.  There are times where declining representation from the initial interview might be your best option.  The fee you receive will undoubtedly pale in comparison to the overwhelming drain on your resources, time and sanity.  Client screening should not be limited to conflict of interest issues only.  Keep a look out for warning signs. Did the client have previous counsel?   Is he realistic about the potential outcome of his matter?  Is he wearing a tinfoil hat?

Of course, there might be times you let one slip through the cracks.  So, under what circumstances can an attorney ethically withdraw from representation?  The Modern Rules of Professional Conduct lay it out for us.  Under the Rule 1.16 one can withdraw if:
(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.
So you checked the rules and are ready to terminate your relationship.  As the song says, breaking up can be hard to do. Here are some tips to consider in order to make the process smoother:

1. Don't Break Up the Night Before Prom
If you do decide to fire your client, you must still make sure to protect their interests.  Firing the client on the eve of a trial can be just as bad as breaking up with Becky the night before the prom.  She needs time to find a new date.   Not to mention such action would be unethical.   Make sure your withdrawal is timely and does not materially have an adverse effect on your client's case.  Your client needs time to find another lawyer.

2.  Dear Client. Welcome to Dumpsville.  Population....  You [ Message Sent]
If you are terminating your relationship, its usually a good idea to do it in person.  Don't do it in a text message or over the phone.  Don't forget, the client chose you to settle their problem.  Give them the courtesy of a face to face meeting.  Explain why you intend to end your representation. If your client understands why you are ending your respresentation, they will be less likely to badmouth you for firing them.  You might even discover that the problem was simply a lack of communication.   It may even solve the problem enough to salvage the relationship. 

If you do decide to end the attorney-client relationship, make sure the relationship really did end.  Did you put in an apperance?  Do you need the court's permission?  Does your client still think you are representing them? Are you holding on to information they need to proceed with their case?   As always, document everything.

3.  There Are Other Fish In the Sea
Sometimes the problem with the attorney-client relationship is personality types.  With my divorce matters, I sometimes run into clients that want me to yell at opposing counsel and bang the table with demands for the truth.   It's not my style.  Other attorneys like to put on a show.  In those instances. I may refer the client to another attorney who better matches their personality type. 

4. Don't Know What You've Got Till It's Gone-Cinderella
If you feel that you cannot continue representation, stick to your guns.  There is a reason why you chose to end your representation. Was that client having an adverse effect on your practice?  Was he berating your staff? Does he consistently not follow your legal advice?  Is he taking up an exorbitant amount of your time that should be devoted to other clients?  Remember, the longer you drag out the relationship, the tougher it will be to end it.

Some clients may make it difficult for you. You may have experienced this yourself.   Did you ever try to break up with someone that refuses to acknowledge the relationship is over?  They will remind you of the good times. They may even make you a mixtape of 80s love ballads that will inevitably include some Journey, a little REO Speedwagon and Poison's Every Rose Has It's Thorn.   Don't fall for it.  You are only dragging out the inevitable.  Keep in mind, the further the client's matter progresses, the less likely another attorney will want to handle the case.  Consider things like any relevant statute of limitations issues.  You don't want to wait too long.  You may be putting your client's matter at risk.

5  Put a PITA clause in your retainer
I got a kick out of an article written by attorney Dan Jaffe regarding problem clients.  In his a flat fee retainer he has a Pain In The Ass clause.  In an Examiner.com article entitled "Law Practice Got You Down" he explained the clause:
This "Pain-In-The-Tushy" clause allows clients a certain amount of phone contact with me each month, beyond which I start charging them by the hour. Any potential client who has a problem with this before signing the fee agreement is telegraphing to me that they intend to take more of my time than I deem reasonable to handle their matter after a decade of experience. I will not negotiate that clause away, and most of the time I politely decline the case if the potential client expresses concern. For one, it says that they don't fully trust me. Secondly, since they don't trust me, it tells me that I should not trust them either.
Whatever you decide, always check with your local bar association to make sure your actions fall within ethical guidelines.  Your actions should never put a client's interests at risk.

Have you ever fired a client?  Feel free to share your own stories.

1 comment:

Green Eagle said...

This isn't just a problem for lawyers. When I was young, I once had a successful businessman tell us that the hardest thing in business is knowing which clients to walk away from.