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Cox: Avoid client problems by avoiding problem clients

Dina M. Cox
September 12, 2012
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cox-dina-mug.jpg Cox

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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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