By Edward Poll
Reprinted from the July/August 2002 issue of GP Solo, published by the American Bar Association.
Client selection - and rejection - is the first line of defense against malpractice problems, but it has the added benefit of being a wonderful management tool for law firms. Articulated client selection procedures can: make the practice of law easier because you avoid the stress of a difficult client, minimize problems with fee collections or fee write-offs, and improve office morale by escaping the time and energy consumption caused by unreasonable and over-demanding clients.
A Client Selection Plan
Client selection starts by drawing up a "client intake procedures plan" and using it. Putting the plan in writing will lock it in your mind and give you something objective to review as often as necessary until you really feel comfortable with it. Stick to the plan; do not deviate from it without having a really good, objective reason.
With all potential clients, take time for a careful client interview. Discuss the client's expectations, discuss the client's case goals, discuss the client's previous legal system experience. Listen to any negative or unsettling reactions that you or your staff may have to the client or to the expectations of the client.
Be realistic in discussing your expectations with the client; do not embellish or low ball the fee to hook the client. That may be worse for the lawyer than if the client left after hearing the projected reality.
Finally, send a written notice to the prospective client in the event of rejection of the case or matter; retain a copy for the firm's records. For proof of mailing, send the letter by certified mail, return receipt requested, or by messenger or courier, where appropriate.
When to Reject Clients
A plan for selecting clients should also include a section on when and how to say "no" to accepting a client. Here are ten considerations when deciding whether to accept or reject a client:
- Pay particular attention to clients who have last-minute emergencies or "life-and-death" matters. Unless a firm has sufficient personnel or specializes in crises, this type of client brings inherent risks since time crunches often push work to less-knowledgeable or less-experienced personnel. Statute-of-limitation and time issues to complete the work and review it for correctness can increase a firm's risk of time-element malpractice claims, which comprise about 25 percent of all malpractice claims. Avoiding these last-minute emergencies is an important rejection tool.
- Beware of a client who is playing law firm ping-pong, or a client that moves from firm to firm. This is an indication of the type of person who is really never satisfied with life but is very willing to blame their attorney for their discontent. This kind of chronic dissatisfaction may ultimately be a thinly disguised invitation to a summons and complaint for malpractice.
- Avoid a client with unrealistic expectations or demands and who believes that your estimates, whether of time or outcome or costs, are guarantees instead of informed estimates. The client that expresses irritation with delay, who is chronically complaining about everything, who is demanding constant or instant attention, or who expects unrealistic or abnormal hand-holding might just be the alter-ego of the chronically discontented client who jumps from firm to firm.
- Watch out for clients who use pressure tactics. Clients who demand that all other cases be put aside to handle their matter first are bound to be trouble. You can recognize this type of client by their unjustified stipulations that the suit be filed today, or that the matter be closed by the end of business. These clients usually overwhelm a law firm or attorney with phone calls over small details or by having to be constantly apprised of progress.
- Beware of clients with bad attitudes toward lawyers and the legal system. Lawyer-bashing to your face, even if it is done in a joking manner, may show a hidden disdain or contempt for the law, for judges or for lawyers. These clients are people with whom it would be difficult to establish a bond of trust, and trust is the cornerstone of the lawyer-client relationship.
- Be careful when the client suggests that they know the process better than the attorney, or that they want the attorney to act as an automaton on their behalf. A recent claim arose because the client's girlfriend had taken a couple of law classes in college and was telling the client to tell his attorney how to run the case. This client was not "in sync" with the attorney.
- Avoid clients who cannot articulate what they have come to the attorney to achieve. There may be psychological needs or ulterior motives in seeking representation. Clients who are looking for revenge are unlikely to be happy with the limited results that the legal system provides. This may lead to disappointment and resentment that can be turned upon the lawyer representing them. This creates a perfect environment for a claim of negligence, and it points once again to the need for continuous communication between the attorney and the client.
- Watch out for clients who make legal fees and costs a major issue. Suits against clients for unpaid legal fees are a prime source for malpractice claims. Clients who cannot or will not discuss or agree on fees, or who will not sign a fee agreement or pay a retainer should be suspect. Clients who want to start now and pay later, or nit-pick over the fee, may be broadcasting a subsequent fee dispute or claim. Rejecting this client before representation will minimize the aggravation of fee collection difficulties as well as claims.
- Do not take matters that are outside of your normal areas of expertise. Cases in areas of law that the firm has little or no experience in should really trigger a client rejection. Taking a case for the learning experience could also include a lesson in insurance coverage and claim surcharges, particularly if the case is taken on an hourly basis and the client's bill is larger than what might be usual or customary for an attorney or a law firm with expertise in that same area.
- Look hard at clients who use other matters as an inducement. When a client alludes to other work or other benefits in handling their case, it may be a sign that they know the downside of their case better than the attorney does. Promises to give a firm more business "down the road" or to supply lots of referrals or high profile visibility from taking a case is really just a sales pitch. There may be an even greater cost for the attorney when the payment of a deductible or higher malpractice premium is added to that equation.
While client selection may be only one factor in claims avoidance, it is a major factor. Too often, attorneys bemoan after a claim is filed, "If only I had understood the client, I wouldn't have taken this matter." Take more time in the initial interview and have more fun and make more money with the matters that you do accept.