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Cox: Avoid client problems by avoiding problem clients

Dina M. Cox
September 12, 2012
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In this column, basic tips for preventing legal malpractice claims and other risk management strategies will be explored. Below are this author’s Top Ten client screening suggestions.

1. Multiple prior lawyers

Beware of the prospective client who has had multiple attorneys representing him on the same matter. This could mean that the client has failed or refused to pay his legal bills. It may be a sign that the case lacks merit or has insurmountable problems. If the case does have merit, it may signal that the client is difficult to work with or impossible to please. Don’t let your ego convince you that you can succeed where others have failed. If the prospective client has had three or more lawyers on the case before you, and those relationships have perished, it is more likely than not that any subsequent relationship will meet a similar demise.

2. Litigation history

Think twice about accepting the representation of a client who has an extensive history of involvement in litigation without some justification based upon the client’s line of work or other rationale. Prior suits against professional advisors are “red flags” in particular. Even where there is no prior malpractice lawsuit, a serial plaintiff is eventually bound to sue one of his professional advisers. Is the client disdainful or resentful of other professionals with whom she has been involved? If so, she may harbor a carefully concealed bias against lawyers as well.

3. Unreasonable expectations

Clients inexperienced with legal matters often have unrealistic expectations of the process, timing or outcome and must be carefully counseled. But there are some clients whose unreasonable expectations cannot be altered or influenced no matter the extent or content of their lawyer’s careful counseling. In screening prospective clients, the lawyer should explain the process, anticipated timing and range of potential outcomes. This discussion should not be sugar-coated but should rather be couched in terms of the worst-case scenario. If during this discussion it becomes apparent that the prospective client has unreasonable expectations that cannot be altered, the representation should be declined. You will not be able to satisfy this client. Satisfied, happy clients generally pay their legal bills and rarely bring legal malpractice claims. Conversely, the unsatisfied client is more likely to refuse to pay or, worse yet, to bring a claim for malpractice.

4. Urgency

When a prospective client seeks your services on the eve of an impending deadline or event, proceed with caution. This may be a sign that the client has been unsuccessful in convincing other lawyers to take on the representation, or the client procrastinates or otherwise fails to face or confront problems in a pro-active, timely way. A client who procrastinates in retaining counsel may also be dilatory, after the lawyer’s retention, in responding to requests for assistance in meeting the objectives of the representation. The lawyer may find it difficult – if not impossible – to perform competently in the face of the urgency or limited time. The client may not be prepared to pay for the exceptional “crunch-time” work that will necessarily be required to meet the impending deadline or prepare for the upcoming event.

5. Friends and family

Think twice before agreeing to represent a close friend or family member. These engagements are often viewed as a “favor” rather than a valuable professional service. The lawyer may feel compelled to charge a reduced fee or no fee at all. The client may resent receiving a bill for services that she believes should have been performed free of charge. Reduced fee or no-fee cases have a tendency to get placed on the back burner and are not worked up as rigorously as higher priority matters. When representing friends and family, lawyers are no longer detached, impartial advisers but become personally invested in the outcome. These engagements often lack the formality of arms-length engagements. The lawyer may fail to adequately document her file. She may refrain from delegating tasks she would normally delegate and tasks may remain incomplete. The lawyer may communicate less frequently with her client, or may do so verbally as opposed to in writing. The behavior that is unfortunately driven by a friend or family engagement increases the risk of a dissatisfied client and, consequently, the risk of a legal malpractice claim.

6. Don’t dabble

When approached by a prospective client, one of the first questions to ask yourself is whether you have the time, resources, experience and competence to handle the matter. This is not to say that a lawyer can never accept an engagement in an area that is new to him. Otherwise, new lawyers or lawyers seeking to expand their practices would have no opportunities. But it is important to be honest with yourself about whether you have the capacity to take on a case in a brand new area. Is the case in which you are being hired an “entry level” case for the practice area? Do you have firm support and the time to educate yourself in the new practice areas? Will you be able to “spot” the relevant issues despite your inexperience? Are there mentors available to you with whom you can consult or brainstorm? A high number of legal malpractice claims stem from cases where attorneys have “dabbled” or taken on an engagement in a practice area with which they are unfamiliar.

7. Ability to pay

Disputes over fees often morph into claims of legal malpractice. Unless you are making a conscious commitment to take on a pro bono engagement for reasons that are important to you and your firm, you should decline to represent clients who you suspect are unable to afford your legal services. While this may seem to be an obvious suggestion, it is evident from attorney-client fee disputes and corresponding legal malpractice claims how many lawyers fail to have a frank discussion with their clients about their ability and willingness to pay legal fees, and what those legal fees might amount to depending on the various paths the representation may take.

8. Concern over legal fees

Another “red flag” signaling a potentially problem client is the client who is overly concerned, or not concerned enough, about legal fees. Overly concerned clients often encourage – directly or indirectly, by virtue of their complaints about legal bills – lawyers to cut corners in order to keep bills low. It is a recipe for disaster when strategic decisions are made based upon budgetary constraints or considerations, and these decisions are not thoroughly discussed and well-documented. Regardless of the outcome, the client’s satisfaction with the work or results may be overwhelmed by his dissatisfaction with the fees.

Clients who express no concern for the ultimate total expense of the litigation may also be problematic. Clients proceeding on principle alone – regardless of cost – frequently fail to appreciate the limits of the judicial system or the risks of an adverse result. They may be impossible to please. They can’t see any appreciable value from the services rendered, unless the exact result they desired is achieved in the time frame they predicted or wanted, and at a price they arbitrarily defined as “fair” or reasonable.

9. Personality/attitude

Beware of the prospective client who is overly emotional, irrational, displays a victim mentality, or fails to evince any accountability or responsibility for the situation in which he finds himself. A prospective client who is resistant in the initial interview to receiving any negative information about his case is also a potential problem client. If the prospective client’s story sounds too good to be true, or the story is contradictory or incredible, you may have a problem client on your hands. A client who displays a lack of trustworthiness during the initial meeting is not likely to change after you accept the engagement. A client who provides contradictory information about himself or his case is more likely to expect results regardless of the means employed to achieve them. If your gut reaction to the client or his case is negative from the start, the situation is not likely to improve over time.

10. Follow your instincts/gut reaction

Lawyers who have been sued for malpractice frequently report having had a “bad feeling” about the client or the case from the start, and they often express regret about not having trusted their intuition when they decided to accept the engagement despite their gut reaction. Resist the temptation to accept an engagement regardless of the risk because you need the work, you feel compelled to help, or you feel you can be the knight in shining armor for this prospective client. In the end, your practice will be more rewarding and fulfilling if you carefully screen clients.•

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Dina M. Cox is an attorney with Lewis Wagner LLP in Indianapolis. She focuses her practice on professional liability defense, drug and medical device/products liability defense, consumer class-action defense, insurance coverage, and insurance bad faith defense litigation. The opinions expressed are those of the author.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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