One source of legal malpractice claims comes from clients who are very demanding or very difficult. It is important for a lawyer to recognize early the client who is going to be very demanding and difficult to deal with, no matter how hard the lawyer works on the case. Those clients are more likely than others to later file legal malpractice claims, even if they have no legitimate basis for a claim.
Lawyers need to become skilled in identifying difficult clients early and in navigating relationships with those clients if the lawyer chooses to represent them. Here are some tips.
Careful evaluation: During the initial consultation, lawyers should assess the potential client’s demeanor, attitude and level of cooperation. Look for any red flags such as excessive demands, unrealistic expectations or a combative demeanor. Evaluating the client’s compatibility with your firm’s values and areas of expertise can help avoid problematic engagements.
Don’t be the third lawyer to take the case: If you are going to take a case, it is best not to be the third lawyer to take the case. It is very possible that the client had a bad experience with one prior lawyer, or just had a personality conflict with a prior lawyer. However, if the client has hired and fired, or been fired by, two prior lawyers, that is a red flag, and you should be very circumspect about being the third lawyer to take over the case. Talk to the prior lawyers to find out why they withdrew, or were fired, from the case.
Protect yourself: If you are going to take on a difficult client, you must protect yourself. For example, have a very solid retainer in place. Seek upfront money to put in your trust account. Make it clear in writing that no outcome is guaranteed. Make the expected fees and the terms of payment clear upfront.
Set boundaries: Set limitations of your service and duties early on. If the client’s behavior is not acceptable, let the client know up front that the behavior will not be tolerated.
Document everything: This is the best way to protect yourself from a malpractice claim. If you get sued, the documents will be your best defense. This includes communicating with the client often, keeping notes of conversations, writing memos to the file, etc. Make sure to date all the documents. It will be hard for the client to dispute contemporaneously prepared documents.
Take care of yourself: Dealing with a difficult client can be very stressful. If you find that the client is affecting your home life, causing you to lose sleep at night, or just causing you to be stressed out, it is probably time to remove yourself from the situation. You should withdraw from the matter or refer the case to someone who may be better equipped to deal with the client. No client is worth keeping around if it is going to adversely affect your mental health.
Be prepared to walk away: At the beginning, when you first take the client, if you can see the client is going to be difficult to deal with, you must be prepared to walk away. That is always your option, and you must be sure to let the client know you have that option by explaining it to the client when you start the relationship. It should be spelled out in the retainer agreement.
It is important for you to know, in the back of your mind, that you have that option, but it is also important for your client to know that you can and will withdraw if the client acts in a way that is out of bounds. If you withdraw, make sure that you do it in such a way that does not prejudice your client so that you stay in compliance with the Rules of Professional Conduct.
Avoiding difficult clients is one way to reduce the chances of being sued for legal malpractice but, if you are going to represent a difficult client, take steps to protect yourself in advance and during the representation.
Steven Schwartz is a principal at Brown & James in St. Louis who has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 30 years. He can be reached at [email protected]. The views expressed in this article are not intended to be taken as legal advice.
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