Difficult clients – The importance of documentation

Listen to this article

As I look back at my columns so far, it’s occurred to me that I might be starting to sound like your mother. So rather than nagging you about having a good attitude and not drinking too much, I’ve decided to simply offer some light pointers for you newly graduated lawyers – a little break until next month when mom’s back.

Let’s talk tough clients. No matter what area of practice you’re in, you will inevitably run into to some difficulty with clients – ranging from a little complaint about the bill to a full out malpractice claim (whoa, you said light pointers, mom).

No matter what end of the spectrum your difficult client falls, there are a few things you can do to protect yourself and maintain your credibility. Depending on how new of a lawyer you are, you may not have encountered a difficult client yet and may not have a feel for the anxiety they can cause. Here’s an example.

A long-time and trusted client of your office calls and says that in light of the economy they are looking to save some money on attorneys’ fees. In short, they need an affirmative action plan but want you to send them an example and they will do it themselves. You’re the helpful new associate, so you dig in, find an example affirmative action plan and send it off to the client. Great job, sport! The client is happy.

The client calls you a few times over the next month to ask some questions. You can see from the questions that they really are lost in their affirmative action planning, but you help them as you can and send them on their merry way. After all, they’re saving money on attorneys’ fees and you respect that – you’ll just let them be.

But suddenly lightning strikes and the client finds themselves in the middle of a Department of Labor audit. Lo and behold, they are not in compliance. You don’t need to practice employment law to know not in compliance = not good. “Whose fault is this?” is the first question out of your trusted client’s CEO’s mouth.

As the Human Resources Manager scrambles for an explanation, the first step in the description of what happened is “I got an example from [fill in your firm’s name here] and talked to [fill in your name here] as I worked on it.”

Now you have an unhappy client. And who’s the bad guy? I’ll give you a hint – it’s you.

You get the call (or your boss gets the call) from the CEO, wanting to know what went wrong.

What is your response? Based on the scenario above, the only response you have is that you sent an example to the client. You can talk about the one or two questions you answered for your client, but you know nothing about the document, the process, or the audit. You don’t need to be a lawyer to know not informed = not good.

You’ve left yourself completely uninformed about your client’s activities with your document, but yet at the end of the day when the ship goes down, you just may be responsible.

So, here is how you could change that scenario to protect yourself and maintain your credibility.

Initially, always include the managing attorney. Your being out of the loop is bad, but the managing attorney being out of the loop can only end painfully. Plus, if your actions lead to your losing one of the managing attorney’s clients, I can assure you that he or she will not be happy, to say the least.

Now that you have included the managing attorney, here are some tips so that you come to him or her with the right strategy.

First, generally avoid sending documents to your clients without knowing what they are doing to them or, at minimum, reviewing them after they have done whatever it is that they are going to do. Depending on the document, consider too whether it is wholly inappropriate to send it to the client for their modification.

Second, send the ol’ “CYA” letter. Dear Client, You have asked us to provide you with an example of [insert document] for your use and modification. Please note that there are very specific requirements for [document] and each one must be tailored specifically to the user.

While we appreciate your wanting to reduce attorneys’ fees at this time, we strongly encourage you to include us in the drafting and implementation of [document]. At minimum, we suggest that we review [document] prior to its implementation.

Third, draft a memo to the file outlining the date, time and context of your conversation with your client. Indicate the specifics of what was asked and provide detail as to what you said and what you provided to the client.

The letter and memo will help back you up when you explain to your client that, at their request, you provided only a limited service.

As much as you might like or trust your client, people can act out of character when they are placed in a bad position; you are better off anticipating this as a possibility and protecting yourself than walking blindly and trustingly into your attorney-client relationship. Also, I know it’s hard to believe, but there are clients out there who will overtly blame you and lie about it too (obviously, try to avoid these clients).

But, whether you encounter a trusted client gone bad or a tough one from the start, being clear with your client about what you recommend and documenting the file thoroughly will go a long way to help you maintain credibility, when it’s needed.