As a risk manager, I have had numerous opportunities to ask attorneys who have been sued for malpractice “What was the learning?” One common response has been, “There is a bit of truth in the old saying that no good deed goes unpunished.” While the stories behind such responses vary, there are common insights that I felt were worth passing along.
These attorneys often say that their initial misstep was one of poor client selection. Yes, they remind me, even if you simply agree to do a favor for or share a little free legal advice with someone, whether you want it to be the case or not, that person is a client. Why? It’s because the creation of an attorney/client relationship isn’t about what your intent was. It’s more about how the individual responded to the interaction and was this response reasonable or foreseeable under the circumstances. There is little middle ground here. If you agree to do a little legal work as a favor or agree to answer a brief legal question, understand that you may very well be held accountable for the eventual outcome even if you didn’t have all the facts. If this doesn’t work for you, then either say no, clearly document in writing the nature of your limited role, or document that the advice shared was based upon a limited amount of information and as such should not be relied upon. Just who are the types of people to be concerned about with this? From my discussions with attorneys over the years the list certainly includes friends, a friend or family member of a good client, neighbors, extended family members, a member of the congregation of the church you attend, a stranger down on their luck, and the list goes on.
Another comment frequently shared is this: “I knew I shouldn’t have agreed to take that client on.” I am repeatedly told that if your gut (or a staff member) tells you caution is in order, listen to that and say no. The good news is that there is no rule that says you must agree to accept every client who walks in the door or that you must answer every caller’s question. If a prospective client behaves irrationally, has an agenda, is confrontational, has needs (or deadlines) that you are unable to meet, or can’t afford your fee politely decline the matter. The alternative (agreeing to take the matter on) often results in a horrible headache. It isn’t worth it because time after time I am told that these situations not only evolved into a collection problem, but also resulted in the filing of a disciplinary complaint and/or a malpractice claim solely because the desired outcome was not obtained.
I often see a related misstep that is perhaps best described as the unintentional pushing of one’s comfort zone. The attorney, out of a genuine desire to help someone, agreed to provide assistance in an area of law not regularly practiced. The attorneys who have shared these kinds of stories often state that they started these “good deed” but problematic representations with the best of intentions. Unfortunately, they tell me, procrastination and “real client” matters eventually got in the way of their coming up to speed or following through. Allow me to state it this way: don’t dabble if you are not prepared to follow through in providing competent representation. Giving advice in a vacuum or viewing the request as a favor, as opposed to real legal work, is a serious mistake. The standard of care isn’t lower because it’s a favor or you’re not getting paid. And never forget this, friends and family do sue. If you wouldn’t be comfortable handling the work for a stranger, you are not qualified to do it for a friend or family member.
This “comfort zone” problem doesn’t just apply to an attorney’s legal skill set. Interpersonal skills can come into play as well. For example, if an attorney accepts a confrontational individual as a client but at the same time is not comfortable (or skilled) in dealing with confrontational clients, this attorney may have a serious problem. Understand that no one gets along well with everyone. Sometimes two individuals simply are not going to be able to work well together. When thinking about accepting a new matter, consider the individual in addition to their matter and accept the fact that there are going to be certain types of individuals with whom you will not work well. That’s ok. Learn to identify potential problem situations and develop a respectful way to say no when these situations arise.
In spite of a recognition that perhaps a “no” is called for, from time to time attorneys will continue to make the decision to accept a problem client. They will justify this decision by expressing a desire to help someone out, to do a good deed. Given this reality, the final advice that I can share if you do find yourself feeling similarly is this: document everything. For example, based upon faith and trust in personal relationships with family friends or extended family members, it is easy to assume everyone is on the same page. Don’t get overly comfortable here. Again, friends and family do sue. While the normal course of documentation, such as fee agreements, may not be deemed necessary, thorough documentation of the decision-making process certainly is. Similarly, confrontational or demanding clients are not to be avoided just because they are difficult to interact with. Here one must be extra diligent in keeping these clients apprised of the status of their matter by thoroughly documenting all interactions and decisions to include keeping all substantive email that has been exchanged. Why? Because if at some later point you become involved in the classic attorney’s word verses client’s word battle, absent supporting documentation, you will likely lose that one. Think about it, if any client is going to start the “he said, she said” battle, it’s going to be the confrontational or demanding client. Don’t get caught off guard.
My intention in writing this article is not to try to convince you to never do a good deed for someone else. I will readily acknowledge that many -- if not most -- good deeds turn out just fine. Someone who really needed the assistance of an attorney received that valuable help and that’s a good thing. That said, sometimes things do spin out of control in unanticipated ways and perhaps the insights shared here may help prevent something similar from happening to you. So go ahead and do the good deed. Just remember to be smart about it.