When discussing past malpractice claims or disciplinary matters with attorneys, I often hear statements along the lines of “I knew I shouldn’t have agreed to take that client on” or “That was one of those no good deed goes unpunished situations.” Effective risk management begins with client screening, and those statements strongly suggested that there was room for improvement in that area. If the above statements ring true for you now and again, regardless of whether a claim or complaint ever arose, consider taking some time to reflect upon your own client screening practices.
While I believe that most attorneys are skilled at screening potential new matters, not as many are as effective when it comes to screening potential new clients. Yes, during the initial interview, you need to be sure that you have enough time, talent, and funds to meet the client’s needs and complete the work in a timely fashion. You also want to avoid dabbling, not only in the high-risk practice areas of domestic relations, real estate, personal injury plaintiff, estate planning, and business transactions & corporate formations, but any other area outside your practice specialties as well. In truth, however, looking at the matter and your ability to deliver the service is the easier part of client intake. The real focus needs to be on the potential new client because they are the ones who most often can become a problem.
Although some attorneys have difficulty conducting a thorough fee discussion up front, this must be done each and every time. The fee discussion will not get any easier once a delinquency develops or after a client begins complaining about the fees because you failed to sufficiently explain them during intake. If a client truly can’t afford your services everyone is best served knowing that at the outset. This isn’t to say you must say no if the potential client has no ability to pay. It does, however, allow you to intentionally decide if and when you wish to provide your services pro bono.
Also, don’t overlook relationship issues that might come into play as attorneys often find themselves in situations where a longtime friend or extended family member seeks their legal services. Some attorneys even compound this situation by offering to do legal work for their staff as a firm “benefit.” I emphatically urge you to use caution in all of these situations because these recipients of your good will can be very litigious. If your potential client would be a “good will” client like a friend, relative or staff member, make certain that you are comfortable with the subject matter of the work and, more importantly, committed to treating this individual as client. Remember, you will still be held to the normal professional standards when it comes to liability for the work done or advice given. Act accordingly because claiming the work was only done as a favor is not going to be a successful defense.
What about the timing of the contact? If a prospective client brings a new matter at the last minute, make sure you understand the reasons behind the delay and are comfortable with them. If you then decide to accept an 11th hour matter, only do so after making certain you have enough time and resources to investigate the matter properly as limited time will not be an acceptable defense for something like failing to correctly identify all relevant parties. Of course, if the client cannot reasonably explain the delay or you don’t have enough time and resources to properly investigate the matter or deliver the service, refuse it. Every malpractice carrier has handled multiple claims that arose due to a misstep that occurred while the attorney was rushing to get the work done. In the end you are simply trying to avoid becoming responsible for the fallout of your client’s own procrastination.
There is value in asking certain prospective clients how many attorneys he or she has contacted prior to coming to you. The answer may tell you something about the prospective client’s matter and/or the client. The higher that number is the greater the risk of a potential problem eventually developing. A prospect who has visited a number of prior attorneys might want to avoid paying fees, or may be one who will be extremely difficult to satisfy. Heed the warning light.
Finally, ask yourself and your staff whether the prospective client behaves irrationally or appears to be confrontational. Such behavior rarely improves over time and the answer can help determine whether you or your staff will be able to work effectively with this individual. No one works well with everyone. Learn to recognize when it simply isn’t a match and then say thanks but no.
Regardless of your screening techniques, a problem client will occasionally make it through the screening process and become a firm client. When this happens, you have an opportunity to further refine your screening process. Step back and ask yourself whether your own actions throughout the representation helped create the problem client. Perhaps the client had some legitimate emotional needs (e.g., recently served with divorce papers) and you’re not one who relates well to highly emotional individuals. In other words, could your own inability to meet your client’s legitimate, yet non-legal needs have caused the client to be dissatisfied enough to become a highly volatile problem client? If the answer is perhaps so, then adjust your screening practices accordingly.
Hanging in with a problem client and then moving on once the work is completed isn’t a significant problem unless this situation arises more than once or twice a year. If problem clients are more frequent than this, you may have a different concern. Maybe you are unable to say “no” or maybe you fear that if you decline a matter no one else will walk in the door for a while and the bills do need to be paid. Whatever the cause, you now know that problem clients are more of a “norm” for you than they should be.
Consider this: stress-filled attorneys are more susceptible to errors. Even one problem client typically demands a disproportionate amount of time and at what cost to your other clients? Problem clients are unpleasant to interact with, difficult to satisfy, and often are collection problems. Now, multiply this stress by the number of problem clients you deal with each year and the total can become significant. I hear far too often that practicing law isn’t fun or personally fulfilling anymore. The problems that these clients create can be a significant reason for the dissatisfaction that attorneys experience.
We all know that problem clients are more likely to file a malpractice suit or disciplinary complaint. They are often a high demand, low reward client. As I see it, the stress just isn’t worth the investment. Avoiding these clients can reduce stress, and actually increase overall income if you take the time you use to spend with problem clients and now use it to seek higher-quality clients. I also firmly believe that avoiding problem clients can lead to a renewed sense of personal fulfillment in one’s professional life.
These screening tips are not meant to be the final word. The goal has been to point out the value of remembering to ask what can be learned from various successful and unsuccessful client relationships. It is too easy to solely focus on completing the daily tasks so that the basic work effort and routine is all that ever gets accomplished. Is there not value in taking some time now and again to ask, “What can I learn from this professional relationship? I believe that it’s especially wise to ask that question about those parts of our professional life that aren’t as satisfactory as we’d like. The way I see it is that learning from the problems we find ourselves in is the only way to avoid making the same mistake over and over.
Mark Bassingthwaighte is Risk Manager at ALPS. He can be contacted at: email@example.com