Management Assistance Program
Client Selection: How to Red Flag High-Risk Clients (Including Relatives)
By Jim Calloway
One thing you do not learn in law school is what clients you should not represent. Veteran lawyers have hopefully learned what potential clients they should avoid, but it is still not a perfect process. Almost every lawyer has a story of that client they wish they had never represented. I’ve had several discussions with lawyers dealing with a grievance, and they frequently repeat, “I knew when I took the case that I shouldn’t do it.”
While it is often a subjective decision on who you will represent and who you shouldn’t, there are some clear warning signs. Let’s discuss the warning signs of potential problem clients. Unfortunately, no such treatment can be exhaustive, and there are exceptions to every rule. But when a client exhibits several of these warning signs, it is appropriate to ask yourself whether you are the right lawyer to represent this client.
THE SERIAL CLIENT
This client comes to you after having first been represented by one or more lawyers. The client may even give you very clear warning signs by describing the other lawyers as incompetent or “crooks.” It is not difficult to appreciate that when the two prior lawyers this client has used on the matter are both deemed crooks, in the future, the client will be sitting in front of another lawyer describing you as a crook.
The simple solution to the serial client is to send that client to that next lawyer now and remove yourself from the “crook” chain. This is certainly not to suggest that every time you are the second lawyer on a case (or perhaps even the third), the client is a problem client. A few deft questions will expose whether the prior counsel gave less-than-adequate legal representation, potential conflicts of interest or other matters that might necessitate obtaining new counsel. One easy test is to gauge the person’s reaction when you say you may need to contact the previous lawyer to discuss something. A strong and angry reaction forbidding you from contacting the prior lawyer with no explanation is a strong signal to pass on this engagement.
THE CLIENT WHO SAYS, ‘MONEY IS NO OBJECT, IT’S THE PRINCIPLE THAT’S AT STAKE.’
This is almost a cliche in legal circles. Many times, there are important and significant principles at stake in legal disputes, and there is sometimes “bet the company” litigation where a loss may be the end of the business. However, generally, the client who says money is no object will change their opinion at approximately the time they receive the first bill.
Even when the client is willing to battle for a principle and understands the cost-benefit ratio in this battle may not be positive, it is still appropriate to consider whether this means you are taking on a matter incapable of settlement or outof-court resolution. In these days, where judges strongly encourage early settlement and often will send litigants through mediation, arbitration or other methods of alternative dispute resolution, consider whether this attitude will significantly impair your ability to bring this matter to a resolution.
When consulted on a legal matter on the eve of a critical deadline a client has known about for some time, you have received a warning signal. Many of us lead busy lives. Often, a 30-day deadline on a summons or other notice of legal proceeding signals to the client that the lawyer must be seen within that 30-day period, and they may put things off until the last minute. They may not appreciate that a document must be drafted by the lawyer and filed at a courthouse within that period. However, it is also true that a client with a meritless claim or who has been rejected by other lawyers because of troublesome facts in the disputed matter will wait until the last minute and hope they can rope you into representation because you will focus on the immediate deadline rather than the underlying merits.
When a client contacts you on the day of or the day before a deadline in a litigation matter, it may be wise to contact plaintiff’s counsel to see whether you are the first lawyer who has contacted that lawyer about this matter.
‘YOU WANTED ME TO BRING SOMETHING TO THE APPOINTMENT?’
Many legal matters turn on contracts, documents and other types of evidence. When the client should have in their possession an important document that is significant to the matter and does not bring it to the appointment to discuss this matter with the lawyer, this is a very strong warning sign. In fact, it may be that the client is comfortable with giving you their interpretation of the document hoping to get you to represent them in this matter, when ultimately, the document you will finally receive differs greatly from what you were told.
YOU ARE ‘CO-COUNSEL’ WITH THE CLIENT’S MOTHER
Many people have family members, close personal friends, ministers and other individuals they have relied on for advice for a long time. There is certainly nothing wrong with that, nor is there anything wrong with this person being supportive and encouraging by accompanying the client to the initial interview with their lawyer.
However, if the advisor who accompanies the client insists on sitting in the initial interview and the client will not allow you to talk to them separately, several legal issues present themselves. Among these is whether you are impairing attorney/client privilege by allowing a third party to listen to the discussion (the answer here is almost always yes). It may be a workable compromise for you to meet briefly with everyone before confidential facts are discussed.
THE CLIENT WHO IS HAVING THEIR FEES PAID BY A THIRD PARTY
It is often appropriate to have a client’s fees paid by a third party; however, good practice dictates that one would never accept fees from a third party without having the third party sign an agreement to the effect they are giving the fees to the client to be given to you as a retainer, they understand they will not be entitled to confidential, privileged information and they understand they may not ask for a refund of the money so advanced. See my October 2014 Law Practices Tips column, “Client: ‘Can My Parents Pay for My Attorney Fees?’, Lawyer: ‘Yes, but…’” at www.okbar.org/lpt_articles/client-can-my-parents-pay-for-my-attorney-fees-lawyer-yes-but, which includes some language that can be used to draft such an agreement.
NO PAY NELLIE
The client who is reluctant to sign a retainer agreement and who also has a good excuse as to why the retainer cannot be paid immediately is an obvious problem. Getting an adequate retainer is, of course, a basic tenet of good law practice management. The client who cannot pay a retainer is certainly a business situation many lawyers encounter. The client with apparent financial assets who still refuses to pay a retainer fee is a client who should be shown the door. It is critical that you never allow yourself to be placed in a position where you are more committed to a client’s matter than the client is.
THE ETERNAL OPTIMIST
A difficult client is a client who has unrealistic expectations about the relief they may be seeking. In an earlier time, lawyers would often take matters with the client espousing an unreasonable view of what the ultimate result in the matter would be. It was thought the gentle persuasion of the lawyer over time, combined with the client getting a realistic view of the cost of contesting the matter, would make the client more reasonable. Whether that was true or even ethical back then matters not. The simple fact is this is not true today. A client who has incredibly unrealistic expectations about a matter is very likely to result in a client who refuses reasonable attempts to compromise, who is unhappy with the attorney throughout the proceeding and ultimately who will file a bar complaint against their lawyer when the matter is concluded.
It is appropriate, however, to outline to the client in clear and unmistakable terms your view of the facts and the range of outcomes. If the client listens to you about your view and moderates theirs, they may be a very teachable client.
THE GREEDY CLIENT
This is a subspecies of the client with unrealistic expectations, but here, it is all about the money. Certainly, an individual who has been wronged or disabled by the acts of another has a right to want fair compensation, but some clients may be too greedy for their own good. We can all think back to the national publicity given to the lawyer who sued the cleaners for multiple millions of dollars based on losing a single pair of pants. Ultimately, the greedy client will be recognized as such by a jury, and this may result in them receiving less than they might have received if they had presented a more sympathetic case. And, of course, if you obtain a successful result for them, this client will turn to arguing with you about the amount of your fees.
YOU HAVE A BAD FEELING ABOUT A CLIENT YOU JUST CANNOT QUANTIFY
This is a much more challenging situation for lawyers but is probably one of the most important categories to recognize. We are trained to rely on facts and not our gut feelings; however, if a client appears to you to be less than credible or if there is something about their story you just do not believe without referring to any external facts, what is the likelihood a judge, jury or another finder of facts will have the same reaction when the client’s credibility is at issue? If you are not comfortable with a potential client, it may be best for you and that client if they retain a different lawyer.
WHAT ABOUT REPRESENTING RELATIVES?
It is very common for lawyers (and some advisors to lawyers) to categorically state never represent your relatives. For many of these, they are just repeating advice they have been given over the years. For others, they may have a particular horror story based on representing a relative. However, it is not my position that you should never represent relatives. Certainly, when you represent a relative, there is the potential for many negatives. Let’s discuss these potential problems briefly so you can deal with them, hopefully in advance. A relative as a client may:
- Expect to receive legal services for free.
- Fail to respect your professional judgment because they knew you “way back when.”
- Have a negative view of your advice based on things you know nothing about.
- Inaccurately relate stories later about the representation to other family members that you are barred from correcting.
However, I do not categorically say you should never represent a family member. But extra caution is warranted. Consider this hypothetical: Suppose you believed you were perhaps the best DUI defense lawyer in your area. You had both attended and taught seminars on advanced DUI defense techniques. Other lawyers sometimes contact you for advice about their DUI cases. Suppose your nephew is arrested for first offense DUI, and your brother brings the nephew in to discuss the case with you. Do you really believe it is in your nephew’s best interest for you to automatically send him to another attorney because of the relationship? This is why it may be too extreme to decline every single case just because there is a family member involved.
One value a lawyer brings to a matter is objectivity. If there is any reason the relationship would cloud your objectivity, it is not only a good plan but perhaps even required under legal ethics rules to let another lawyer handle the matter.
Here are some other hard and fast “black letter” rules from me associated with representing relatives:
- Never represent a relative in a contested family law matter. Family law is simply too close and too personal for you to be objective. In addition, the collateral consequences of family law matters impact other family members besides the two of you. If a child is absent from the family Christmas gathering, this could be a black cloud that hangs over the holiday impacting everyone, including your immediate family and your client’s family. And let’s face it, complaining about the bad break one got in their divorce is often a topic of conversation when family members get together. It is better for you to not be a part of that discussion.
- Never represent a family member without a written, signed fee agreement. Some would say you should never represent a family member for free. I leave that to your discretion. I would strongly suggest, however, that it is appropriate to have a relative read and sign an attorney fee agreement even if you then charge a modest, flat fee for the entire matter. There are items within your standard attorney/client agreement that need to be communicated to a potential client, and forcing your relative to read and sign an agreement may help them appreciate this is now a professional relationship.
Hopefully, by following these tips, you will not have to deal with too many clients you wish you had never met. It should be noted, however, that people with disagreeable personalities have more legal disputes than some of the rest of us. So, do not be surprised if occasionally, despite your best efforts, you find yourself representing a problem client.
Mr. Calloway is OBA Management Assistance Program director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 800-522-8060, firstname.lastname@example.org or find more tips at www.okbar.org/map. It’s a free member benefit.
Originally published in the Oklahoma Bar Journal — August, 2021 — Vol. 92, No. 6