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.
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.
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.•
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.