Client Compatibility: Screening and (Sometimes) Firing Clients
Client CompatabilityThe compatibility of clients with their lawyers is an important factor in assuring quality legal services and avoiding malpractice claims. A client who does not trust their lawyer, rightly or wrongly, will be more inclined to sue the lawyer. A lawyer who cannot provide what a client expects from them is more likely to be sued.
Screening of clients prior to acceptance of representation is the critical first step in assuring compatibility. Firms should consider policies which specify what types of matters or clients are to be rejected, and should have formal procedures for evaluating whether to accept representation. Once representation begins, it may become apparent that the lawyer and client are not compatible. The earlier that incompatible clients and lawyers part, the lesser the impact is likely to be on both parties. Judges are more likely to grant motions to withdraw early in litigation. Unlike certificates of deposit, early withdrawal avoids penalties in legal malpractice claims.
Competence of the Lawyer. Before committing to representation, a lawyer must have experience in similar matters or be able to gain such knowledge in the matter readily. Cases outside the firm’s area of competence should be declined. After commencement of representation, the knowledge or expertise needed may change significantly. It may be necessary to withdraw or associate other counsel on a matter.
Experience with Other Lawyers. Lawyers should review a potential client’s experience with other lawyers before deciding to accept representation. When another lawyer’s disgruntled client approaches you, ask yourself why that client is more likely to accept what you do. Sometimes you will have a good answer: I’m more experienced in this area of law than the last lawyer, or I am good at dealing with a client with this type of personality. Other times, you may come to the conclusion that the potential client doesn’t like lawyers or the legal system. Such clients get angry, and are more likely to sue.
Client Motives: A client’s motive in securing representation can affect the likelihood of a claim. Clients who seek representation to vindicate a principle or for psychological satisfaction are often disappointed with results of the representation. Such clients may not understand that lawsuit can only result in a judgment or a court order, not in justification or love. Clients suing to teach someone a lesson often become exasperated at how much their principles cost, and make their lawyer their new wrong that needs to be righted. Clients seeking unfair or immoral advantages over others often blame their lawyers for problems they encounter later.
Performance of Client Tasks. Clients are important partners with their lawyers in most kinds of legal representation. Clients will have tasks that they need to perform in order to get the benefit of legal services. When a client shows signs of inability or refusal to perform critical tasks, the representation should often be declined or terminated. Many lawyers represent clients only to discover that those clients are unwilling to cooperate with discovery requirements. When such clients are penalized, even for their own mistakes, they often claim that their lawyer failed to adequately inform them about what they needed to do and the consequences. Withdrawing when the client first appears unwilling to cooperate is better.
Acceptance of Advice. Closely related to clients who don’t do their part are clients who do not accept advice. If the client does not accept advice, they no longer trust the lawyer AND may get into trouble. When they start looking to fix blame, what better object than the lawyer they do not trust?
Adverse Affect on Practice. A client may begin to take up so much of an attorney’s attention that other matters and clients are affected. If the client is difficult to deal with and takes too much effort, withdrawal should be considered.
In the worst cases, a client may become too big to fire: Important Client Syndrome. If a client is too big to say “no” to, consider whether the relationship should continue. In some of the recent corporate scandal cases, it appears that the clients involved did not want bad news, and the lawyers no longer gave candid advice to them.
Conflicts. A conflict of interest is the ultimate incompatibility issue. Discovery of potential conflicts of interest can occur at any stage of representation. Screening at the beginning of the case by consulting databases of parties with potential conflicts and circulation of new matter memos to all firm members helps to avoid conflicts at the intake stage. As a matter progresses and new parties become part of the environment of a matter, such checks must be run again. If any potential conflict becomes an actual conflict, the lawyer may be required to withdraw.
Fee Disputes. When lawyers and clients disagree about fees, the potential for malpractice claims looms. We see significant numbers of claims arise when lawyers push for fees, whether through demand letters or law suits. Malpractice claims are mandatory counterclaims in fee suits.
Screening for potential fee disputes begins as soon as representation is considered. Credit checks are appropriate in some situations. Having a signed fee agreement or an engagement letter at the commencement of the matter combined with frank discussions about the ultimate potential cost of representation forces the client to consider the economic consequences of pursuing the matter up front. If a client is unable to meet fee obligations, withdrawing from representation early lessens both the amount of money that the lawyer is due and the risk that fees will come to dominate the thoughts of both the client and the attorney. Taking pro bono cases is not bad; just avoid unintentional pro bono cases.
