Don’t Accept Every File That Walks in the Door

This article from February 13, 2014 is by Nora Rock, corporate writer and policy analyst at LAWPRO.

At the risk of sounding like a self-help book designed to help you find Mr. or Ms. Right, we’d like to remind you (the day before Valentine’s Day, no less!) that being selective about the clients you represent is an important claims-prevention strategy.

Depending on your area of law and how established your practice, you may be tempted to dismiss this advice as being valid only for lawyers in the enviable position of having more referrals than time. But turning away clients that are a poor fit can be especially important for lawyers trying to build a practice.

Difficult clients can hurt your practice in a number of ways, for example, by:

  • pressuring you to take ill-advised steps (unreasonable negotiating positions;
  • ill-founded bases for litigation) that can reduce your credibility among your peers and with judges;
  • blaming you for their disappointment with the results, despite the weak merits of a case;
  • monopolizing your time and energy so that your other files get short shrift;
  • frustrating (or even insulting) your staff;
  • requesting tactics that run counter to your commitment to civility or your professional ethics;
    making your working life unpleasant; and
  • bringing unfounded claims against you when results don’t go their way.

Of course, clients who will ultimately turn out to be difficult don’t come with hazard labels: to identify them, you need to pay close attention to your instincts. Asking appropriate questions and listening for red flags in the course of the intake interview can reveal trouble on the horizon. Here are some clues that a potential client may not be a good fit:

  • he/she is hesitant to provide a full and open description of the details of the case;
  • the client readily challenges or disagrees with your preliminary assessment;
  • you feel that the case (or defence, or strategy, or whatever) has little chance of success, but the client insists that the case is very strong;
  • the client has researched the law and just wants you to implement a strategy of her own design;
    the client is pursuing a large or precise quantum of damages before you have had a chance to investigate the nature of the loss (in a case where there are general damages);
  • the client is argumentative or oppositional;
  • the client resists answering questions or seems evasive;
  • the client seems unusually knowledgeable about legal procedures or principles (or, you learn that she has a long history of prior litigation);
  • the client has been representing him or herself in this matter up until now, for reasons other than affordability;
  • the client openly criticizes her former lawyer, or the opposing party’s lawyer;
  • the client is unusually angry with the opponent on a personal level;
  • the client’s manner of speech is confused, confusing, or otherwise unusual, or you suspect mental illness and you are concerned that you don’t understand his instructions or that he is not capable of understanding your advice;
  • you feel vulnerable, attacked, threatened, or otherwise very uncomfortable speaking with the client;
  • the intake interview takes considerably longer than usual despite the claim being routine; or
    you are being asked to replace another lawyer who got off the record or who this client fired.

Of course, individuals with strong personalities, strong opinions, or even mental health problems need and deserve legal representation just as much as clients who are easier to deal with. When making a decision about whether to represent a client, you can find guidance in the Rules of Professional Conduct – especially Rule 2 “Relationship to Clients”, which covers a wide range of issues, including how to represent a client who may be under a disability (lack capacity).

You know yourself best, and have a sense of the kinds of people with whom you have difficulty working. For example, you may be good at defusing a client’s anger, but may find yourself very frustrated by clients who talk constantly and never listen. If, in an intake interview, you find yourself developing a strong dislike for a potential client, ask yourself whether this is a person who pushes your particular buttons. If it is, then he or she may be better served by working with a different lawyer.

If it’s the merits of the matter – and not the client – that are giving you pause, don’t hesitate to defer the decision about whether to accept the retainer until after you’ve done some preliminary research (unbilled, of course). Remember that another lawyer with a different range of experience might view the prospects more favourably; and that this can be a valid reason to refer the client elsewhere.

Finally, if you suspect that a client is mentally ill or cognitively impaired to a point that puts his or her capacity into question, proceed with caution, especially if you have no experience with clients with capacity issues or with arranging capacity assessments. If you do decide to take on the retainer, obtain advice – for example, from an experienced mentor – about how to best protect the client’s interests.

There is no limit to the diversity of human personality, and lawyers have a duty to avoid discrimination when offering representation; however, an effective lawyer-client relationship requires trust and communication. Where interpersonal difficulties put the establishment of trust and communication into question, declining a retainer can both protect the lawyer’s reputation and practice, and also avoid a situation in which the client’s interests are not optimally served. The bottom line? Know when to say no.

For additional strategies for dealing with challenging clients, see “Dealing with the Difficult Client” by Carole Curtis, available on practicePRO.ca. If your concerns about a client raise questions of potential fraud, review the red flags identified in Kathleen Waters’ article “Five client types to watch out for − there be dangers in these relationships”, which originally appeared in the August 23, 2013 issue of The Lawyers Weekly published by LexisNexis Canada Inc.

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Comments

  1. In the first article you’ve cited I’ve found this statement: “Lawyers can, under certain circumstances, refuse to act for a particular client”, which obviously implies a professional obligation to accept a client except “under certain circumstances”.

    As someone who had a great deal of experience seeking counsel (without any success) before proceeding as a self-represented litigant, I concluded that in Canada there is no such obligation – in law or anywhere else. The reality seems to be that lawyers are encouraged to cultivate select clienteles and can turn away any prospect, giving any reason or no reason.

    So, my question is where is that alleged obligation?

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