Canning Your Client
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Much like a marriage, the lawyer-client relationship can seem like a match made in heaven. Each respects the other, and together they make a team that can handle almost any adversity that comes along. But sometimes there are silent resentments and disagreements bubbling beneath the surface, waiting for a break in the facade. If the proverbial toilet seat is left up once too often, things can go south surprisingly quickly.
When the relationship sours to the point of near-constant acrimony and frustration, lawyers have to ask themselves some tough questions: How important is this client to my bottom line? How much am I willing to endure in the name of zealous representation? How much do I value my sanity and peace of mind? The answers to those questions will often determine whether the time has come to “fire” the client.
So, what causes a lawyer-client relationship to hit the skids? Like any other type of relationship, it could be just about anything. But to hear lawyers themselves tell it, the most common reasons seem to be clients who: don’t pay legal fees, leave out important details, have unrealistic expectations, are uncooperative or are unethical.
The true client from hell will embody all of these undesirable traits. Just ask Ruth Ann Azeredo.
Azeredo of Millersville, Md., runs a solo practice after having held various government and in-house counsel positions since 1991. She recently represented a woman being sued for a large amount of money by her former employer—a construction company with absentee owners—for conspiracy, fraud and civil theft. The woman had held various positions within the company and was most recently a vice president.
“My client signed the checks, but another person—another VP—kept the purse strings,” Azeredo says. “They would ‘borrow’ money and record it as a loan. There was no interest on this ‘loan.’ ” When one of the owners suggested to the woman that she have a crew build a motorcycle shed on her property during a slow period, the suggestion was treated as a blank check. “It took three weeks off and on,” Azeredo says, “and the total cost was about $23,000.”
The money was not paid back. The woman claimed the owner did not make it clear that the money was to be repaid.
“She is a close-to-50-year-old woman who certainly isn’t naive,” Azeredo says. “She was able to run this company successfully and turn a darn good profit for over eight years, so she’s not stupid. She was playing stupid like a fox.”
Compounding the situation, the woman sold her house—which she had purchased with a no-interest loan from the company—to an acquaintance after she was sued. Azeredo had warned her not to sell because it would appear that she was trying to divest herself of assets. Not to mention the fact that the mega-shed had substantially increased the value of the property.
The woman claimed she had to sell the house to get money to pay Azeredo, who at the outset had slashed her fee by $50 per hour “because I was stupid enough to believe her sob story.”
Despite making a profit on the sale, the client made no further fee payments. “During the middle of discovery she told me she didn’t have another penny,” Azeredo says.
And even though the opposition was willing to settle for the cost of the shed—and Azeredo strongly advised her to take the deal—the client refused and became an inactive participant in her own defense.
“I would send her e-mails; I wouldn’t hear from her. I followed up with certified letters; they would be returned undelivered,” Azeredo says. “I would have my paralegal go drop stuff off for her.” And when asked to provide certain documents for discovery, the client would refuse because, says Azeredo, “she didn’t think they should have it.”
Azeredo’s patience was growing thin. “At one point I said, ‘Look, you need to give me money, and you need to be available. This is insane,’ ” she recalls. “And nothing got better.”
As if all that wasn’t enough to make even the most intrepid lawyers throw up their hands and walk away, there was more. After the woman was notified that she was required to preserve relevant documents, she claimed that her hard drive had crashed and she was unable to save anything on it, so she threw it out. And she continued to refuse the settlement offer and claim inability to pay the balance of Azeredo’s fee, even with the offer of a payment plan.
At this point Azeredo couldn’t justify continuing with the case and told the client she was going in for a motion to withdraw.
But the process took more than a month, and in the meantime the client continued to be unresponsive, even failing to show up for a deposition. But she found sufficient motivation to show up at the courthouse one day, unbeknownst to Azeredo, and try to postpone the deposition because of her attorney’s “hostile” attitude. This was followed by being a no-show at a weekend prep session, another missed deposition and an implied threat about filing a grievance against Azeredo.
“Meanwhile,” says Azeredo, “all I had done was work my butt off for her and she had a great defense. So even though she was concerned about my ability to represent her, she wouldn’t discharge me. … Then she’s going to complain.”
Azeredo says that the client still owes her several thousand dollars, and that she intends to collect. “I guess the only way I could have made it any different for me is I could have said, ‘Look, this is going to be expensive litigation; you need to give me $30,000.’ ”
While waiting for the motion to withdraw to be finalized, Azeredo read up on the local requirements for ending a representation. She wanted to make sure she did everything by the book so that she could be properly extricated from this nightmarish situation. “I looked at all the rules,” she says. “I knew what I had to do in terms of giving her the proper notice, et cetera.”
ENDING IT QUICKLY
Alan Bernstein.
Photo by Michael Cogliantry
While it may seem counterintuitive to think of lawyers firing clients, it’s not all that alien a concept. Professionals of all stripes have to decide whether they’re better off with or without problem clients. And they might be well within their rights to jettison a client who—to put it bluntly—just isn’t worth the trouble.
Problem clients come from all walks of life and often don’t appear to be problematic until well into the representation. Only then do they reveal themselves to be unethical, unreasonable, uncooperative or unstable—or all of the above. When this happens, the lawyer has to act quickly and decisively to end the relationship for his or her own benefit, as well as that of the client.
When the decision has been made to part ways, there are a number of considerations, both practical and ethical. The break should be clean and unequivocal, but the client’s situation must never be left in legal limbo, lest you be on the receiving end of a disciplinary grievance or malpractice charge. (If you’re looking for something to read in your spare time, Rule 1.16(d) of the ABA Model Rules of Professional Conduct touches on such topics as giving reasonable notice, surrendering papers and property, and refunding unearned advance payments. And the ABA Center for Professional Responsibility expands considerably on those topics at its website, where it offers detailed guidance on tidying up whatever messes may exist at the end of a representation.)
Though rules abound regarding what a lawyer must do and not do, it’s important to remember that one size does not fit all. Even though the Model Rules address numerous issues that could lead to termination of representation and give advice on the aftermath as well, a disclaimer might be in order here informing that every state has its own compendium of regulations covering the breakup of a lawyer-client relationship (taxes and title are extra; actual mileage may vary).
If the time has, indeed, come to call it quits, the divorce can be quick and painless or protracted and agonizing. How a practitioner handles it will determine which scenario plays out. And though relatively few lawyers experience Azeredo’s bad luck of the draw, some have been known to pull a wild card wherein the problem stems from someone other than the client.
Carol R. Shepherd of Ann Arbor, Mich., had such an experience when she took on a client who owned a chain of small shops and wanted to allow some investors to buy into the business. The client had come to Shepherd based on her psychotherapist’s advice to avoid any dealings with men because she had an abusive spouse.
Shepherd, a solo practitioner for the past 18 years, counseled the woman on how to achieve her business goal. But she noticed that the husband would sometimes show up at her office building and loiter in the hallway, even when his wife wasn’t there.
“Here’s this middle-aged guy with tattoos,” Shepherd says, “swinging his fist into his other hand, walking up and down the hall.”
One day Shepherd, who was having lunch with friends in a neighboring office, got a call from a building tenant. “He said, ‘There’s this man hanging around in front of your door. He’s been there for 45 minutes. He says he needs to see you urgently and he’s not going away.’ ”
Shepherd avoided going back to her office for a while. When she realized who the man might be, she got out of Dodge, pronto.
“I went out the back door,” she says. “And when he went into someone else’s office, I found out he was grabbing people by their clothing and shaking them and threatening them to get them to produce me.”
The experience left Shepherd rattled enough that she returned the remainder of the client’s payment with a termination-of-representation letter and got a personal protective order against the husband.
“After I returned the check he got mad,” Shepherd says. “He came back, but I was working at my house. Just hadn’t been in yet for the day, and it was a good thing. Now I make a 3,000-foot detour around those shops.”
Though she did what she had to do to protect herself, Shepherd regrets having to terminate a client she cared about. Indeed, it can be a guilt-ridden balancing act when a lawyer feels the need to make a choice between personal security and an obligation to the client.
“It’s very sad when you have someone who is in a situation like that,” Shepherd says. “You wish you could help, but you’re not willing to help at the expense of your own safety.”
CLIENT INSTABILITY
In Shepherd’s case there was a desirable client with an unstable spouse. But what if the client is unstable? What accommodations must the lawyer make? Model Rule 1.14 advises that the lawyer should, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”
Solo practitioner Edward P. Sager of Kirkland, Wash., tried to do just that. The local bar association referred to him a client who was claiming injuries caused by an airport shuttle bus. The unusual details of the case indicated to him that it was going to be anything but a slam dunk.
The shuttle bus company, Sager says, filed a report with its insurance company “mentioning that she … claimed she had heard voices and things of that nature.”
Sager invited her to his office, where she confirmed the details of the report. “She’s like, ‘Oh, yes, when I get stressed I hear voices and I see things and I’m not always sure that they’re there.’ ”
Robert Creamer.
Photo by Callie Lipkin
After questioning her, Sager found out that she was taking medication for a mental illness, and that she had been to four other law firms before coming to him. She was intent on pursuing a dubious discrimination claim as well—for which she had no discernible proof.
“I tried calling her after we met to see if she could get the story straight,” Sager says, “but each time the story changed just a little bit.”
Convinced that the ever-changing claims she was pursuing were meritless, Sager decided to end the representation and asked the woman to meet with him again. “I certainly wasn’t going to do it over the phone,” Sager says.
But instead of meeting with him, the woman left a series of phone messages explaining that she had been hearing voices in her sleep telling her how to proceed with her case. Sager was unable to reach her by phone, so he sent her a detailed letter by certified mail. It was returned, so he sent a second, which included the first.
She got that one. In it, Sager ended by informing her that her account balance was “zero dollars.” This, he says, eliminates any reason for continued communication.
On the subject of firing a client with mental health issues, Sager says he had to tread lightly.
“I didn’t really know exactly what to do,” he says. “So I did some research on how other attorneys had handled it. I’ve gone to a lot of CLE seminars in my years of practice. I consulted some of the CLE books that I had and came up with the letter.”
But if Sager was walking on eggshells with that case, imagine his trepidation when he encountered an even dicier client situation: He had to fire his parents, sort of.
Sager was handling a property damage claim for them and made certain recommendations on dealing with the insurance company. It turns out one parent toed the line while the other marched to a different drummer.
“My father would do everything I asked him to do,” Sager says. “He was like, ‘You’re the attorney. I’ll listen to you and do what you say.’ My mother was more along the lines of, ‘Well, I don’t know why it’s good for me to do that; I’m not going to spend time doing that.’ ”
Sager says that, in addition to noncompliance, Mom wanted to meet with him late on Friday and Saturday evenings to talk about the case.
“It got too cumbersome,” he says. “So after I made a settlement with the insurance company for them—a pretty good one, in fact—I terminated representation of anything further with them.” (Sager might want to sneak a peek at Mom and Dad’s will.)
Far from being skittish about informing a client that he’d had enough, solo Alan P. Bernstein of Flemington, N.J., had no compunction about showing one of his clients the door in no uncertain terms.
In a case involving his client’s attempt to acquire a controlling interest in a family-owned company for development purposes, Bernstein called a shareholders meeting that the minority shareholders declined to attend. When Bernstein and his client floated a stock offering, they got no response.
The shareholders wanted more than the client was offering and refused the settlement offer. They lost, but the client was mighty irritated at that point. “He decided he was annoyed and mad at them, and he didn’t want to pay what they were entitled to for the shares,” Bernstein says. “He would just show up at the office and start bothering the receptionist and say he had to see me—loudly, without an appointment.”
Bernstein found the case to be interesting and challenging, and so he was willing to put up with a pushy client—up to a point. “Once he started wanting me to do stuff that was not only unethical but illegal, I said no way I’m doing anything like that,” he says. “But he was annoyed enough about it that he didn’t want to pay me, and he turned out to be a really nasty guy.”
Bernstein finally got so disgusted that he told the client point-blank: “Get your ass and your files out of my office.”
Looking back on that episode, Bernstein recalls that the client “owed me a fair amount of money at the time, but it was worth it to get rid of him. In this case the client was personally despicable and unpleasant.”
Then, with a chuckle, he adds, “I can’t imagine I was the first person ever to tell him to get out of their sight. I think he was used to it.”
PRE-EMPTIVE STRIKE
Lawyers who have been through it know that giving a client a pink slip well into a representation can be like crossing a minefield of anger, revenge and hurt feelings. With that in mind, it might be wise to consider a proactive approach.
Mary L.C. Daniel, owner of a three-lawyer firm in Winchester, Va., has this firing-the-client thing down to a science. She and her associates take time out each October to analyze their clients. Not the cases, not the files—the clients.
“Firing is a very harsh term, but part of being a responsible business manager is doing a cost-benefit analysis,” Daniel says. “And it’s more than just dollars and cents. It goes into: Am I really the right lawyer for this person? Am I able to meet expectations? Is it worth it to me to keep doing work for this client?”
Daniel got the idea from a former boss, and she finds that if it’s done right it can be a win-win situation. “There can be a better lawyer for them,” she says, “and there can be a better client for me. And frequently, the clients are absolutely fine with it. Maybe they’ve been thinking the same thing but they didn’t want to hurt your feelings.”
And Daniel says conducting this process in October wasn’t just a random choice. “What we realized was, if you did this in October, usually the representation is terminated by Christmas,” she says. “So it’s like a little end-of-the-year cleanup present to yourself.”
Daniel not only practices what she preaches but writes about it too. In the July/August 2006 issue of GPSolo, the magazine of the ABA General Practice, Solo and Small Firm Division, Daniel writes—in an article titled “Fire Your Clients. Or Your Staff. Or Yourself”—that troublesome clients “suck the life out of you. … They frustrate you and your staff. You become an angry and difficult person because of them, and your family and staff do not deserve that.”
THINKING AHEAD
Though it would certainly be a plus to be able to identify bad-news clients before taking them on, it’s not as if they walk in the door wearing a shirt that proclaims “I’m about to become your worst nightmare.”
Instead, a lawyer who wishes to minimize the chances of picking a lemon should tailor his or her intake process to increase the odds of ending up with something a bit sweeter.
Retired practitioner Robert A. Creamer of Evanston, Ill., who teaches legal ethics at two Chicago-area law schools and serves as a director of the Association of Professional Responsibility Lawyers, says the intake process is critical for many reasons.
“Careful intake really cuts down on the need for withdrawal,” he says. “One of the most important things you can do is to ask whether the person has seen other lawyers or has come to you in the middle of litigation.”
If the answer is yes, Creamer says, get permission from the person to speak to the previous attorney(s), and get it in writing. “If the client refuses to give consent,” he says, “it’s a bad sign.”
Creamer also cautions against taking on clients with business plans or schemes that seem improbable. When they fail to pan out, he says, it invariably leads to tension between lawyer and client.
But aside from the whys and wherefores of the case, Creamer says the best way for a lawyer to avoid conflict well into the representation is to make sure at the outset—to the degree possible—that the client is going to pay. “If they don’t have it now,” he says, “why do you think they’re going to have it when the bill comes due?”
Creamer says sizing up clients can be complicated, based on the myriad bits of information gleaned from an extensive intake interview—or it can be as simple as listening to your initial gut reaction. He prefers the latter and crystallizes his take on it quite succinctly.
“The best risk-management tool,” he says, “is the front door.”
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