A while back, attorney James W. McNeilly successfully defended a former colleague against a meritless ethics complaint.
Afterward, his colleague expressed a wish to represent that client again. McNeilly talked him out of it.
Clearly, a previous ethics complaint is a red flag. But, says McNeilly, of Lakelaw Kenosha, it’s easy to miss, or downplay, signs of the potentially troublesome client, especially if you’re a compassionate lawyer who wants to help others.
New lawyers are notorious for taking on toxic clients, says Nicholas J. Vivian, of Eckberg, Lammers, Briggs, Wolff & Vierling PLLP in Stillwater, Minn.
Vivian, president of the Young Lawyers Division of the State Bar of Wisconsin, emphasizes that first impressions count. He frequently represents businesses with an eye toward establishing long-term relationships, he says.
“I look for clients with similar personalities. I’m looking for small businesses that I can grow with, and who can grow with me. So I want to make sure the client’s personality is the right fit on the front end.”
He’s careful to schedule generously when making that initial meeting. Give yourself time to look for the clues that a prospect might have toxic tendencies, he says.
“Clients who give me the willies” are to be avoided, agrees Todd E. Schroeder of Devainie, Belzer & Schroeder SC in La Crosse, who concentrates in criminal defense.
Here are some toxic types you should learn to recognize and avoid:
Vivian urges listening closely to the prospect’s goals.
“When you meet with a client for the first time, you’re developing expectations right off the bat. And I think the lawyer needs to be cautious in not setting expectations that are going to be difficult to achieve,” he says.
Schroeder says that clients who believe they know everything are toxic.
“I try to screen out clients who argue with me about the law. Because if they argue with me about the law, they’re going to argue with me about strategy and anything else that might come up,” he observes.
Attorney Johanna R. Kirk represented a married couple in a business matter a while ago, and is relieved the case is over because of one of the difficult personalities involved.
She noticed during the initial meeting that one of the spouses was critical and demeaning of the other, and in hindsight says that should’ve been an indicator to her that this client would be toxic.
Sometimes, notes Kirk, who practices at Knudsen, Gee & Torvinen SC in Superior, the bully isn’t your client but the other parties involved or possibly their legal counsel. So take the time to make sure you’re not accidentally signing onto a toxic case.
The Artful Dodger
Can your client follow instructions? For example, does a potential plaintiff in a personal injury case follow-up quickly with copies of the accident report or medical records? Kirk says that if she doesn’t, it may mean that she doesn’t take her case seriously, or worse, she’s hiding something,
“It makes me wonder how she’ll be at a deposition. Will she be able to follow instructions such as ‘Listen to the questions. Just answer yes or no if that’s all that’s needed,’ etc. It makes me wonder if she’ll follow my advice, or if she’ll just try to run the show,” says Kirk.
Schroeder is also wary of prospects who ask about a payment plan.
“If they ask for that, it means they probably won’t have the funds for experts or if any other unanticipated costs come up. Then it becomes a major headache,” he says.
Vivian says he clearly conveys at that first meeting that he bills on a monthly basis and expects those bills to be paid in a timely fashion, as a part of the discussion of what the realistic cost of the representation will be.
It’s not that either attorney is averse to pro bono work, or a representation where the remuneration will be modest at best. But it’s best for the attorney to make those critical financial decisions — not the client.
The Serial Client
Vivian says he always takes the time to “CCAP” a prospect, looking especially for judgments against him or her from law firms.
If a prospect wants you to become his or her next attorney, find out the status of the attorney-client relationship, and whether there are pending OLR complaints, says McNeilly.
Other warning signs — and they tend to be inter-related, according to McNeilly —include when a prospect argues with you, or says emphatically, “It’s the principle of the matter!”
Just say no!
Schroeder occasionally accepts public defender appointments because he believes he has a moral, ethical and professional duty to do so. But he frankly admits that such appointments can be “an exercise in learning how to deal with difficult clients.”
Still, he says, “I consider it a failure on my part if I have to get out of a case because of an issue with a client. I think in general it’s part of the attorney’s job to make it work with clients, because everybody’s different and they have unique problems.”
But Kirk, a civil litigation practitioner, notes that, “sometimes you just have to say, ‘No, we’re not going to take that strategy, we’re not going to pursue that remedy, and if that’s a problem you need a different lawyer.’
“I’ve had those conversations. They’re uncomfortable but necessary. Because lawyers have to stand by their principles, listen to their gut, and remember that there’s nothing wrong with saying no to clients. Sometimes we have an obligation to do that.”
Toxic clients aren’t a problem just for new lawyers; says Kirk, so if you find yourself representing one don’t beat up on yourself too much.
“There will always be clients who surprise you,” she says. “You can have a client in an estate planning matter, for example, who becomes toxic because her sister died and there are issues with the probate of the sister’s estate. There’s no way to completely screen out or avoid toxic clients.”