Attorneys who have faced a malpractice complaint often can pinpoint the moment when they knew they had an issue. Many say they should have known from the beginning that their relationship with a client was not going to be successful. As a result, screening clients has become an increasingly important part of legal malpractice claim prevention.
The idea of screening clients is antithetical to the financial goals of many attorneys. Conflicts can cause them to lose some work; there aren't many attorneys looking for ways to reduce their client base. But problem clients don't get better with time. Over the course of a representation, problem clients can go from being challenging relationships to legal malpractice claims in progress.
According to the data, problem clients are often worse than no clients at all. The challenge is to screen out the problem clients without giving up on the clients attorneys need to survive.
Screening clients means different things, depending on the size, type, goals and location of a law practice. In the end, representation typically involves the exercise of an attorney's judgment about whether to accept a new client. Because of that judgment, there is no formula for every decision regarding whether to accept a new client. But there are some common characteristics to consider.
Some indicators for problem clients seem obvious. Others are the product of data about legal malpractice claims and the risks of the modern-day law practice.
Ask the right questions
Common sense goes a long way in detecting potential problem clients. One of the most telling questions to ask a new client is: "How many attorneys have represented you in this matter before now?" If the answer is "seven," an attorney should think long and hard about becoming the eighth.
Clients who have been unhappy enough to hire and fire seven attorneys before are unlikely to be happy with the eighth. Worse yet, if their case or transaction does not go well, they will likely hire a ninth to sue the eighth for legal malpractice. Similarly, if the seven previous attorneys refused to take on the case, that might raise additional questions as to why.
There are other similar common-sense questions. For example: "How many times have you been a party to litigation before?" This is obviously not a bright-line rule; large companies are frequently parties to litigation.
However, potential clients who have overly litigious histories might raise some red flags. This is especially true for potential clients who have made a career of suing other people for minor or perceived slights. Eventually, these serial plaintiffs can make their way to suing their attorneys.
Consider the deadlines
Beyond the obvious questions, best practices suggest that the attorney should consider the realities of the proposed representation before deciding whether to continue. In making this assessment, consider at least two things.
First, when must the work get done? What is the first deadline for the new matter? Representations that begin on the eve of expiration of the statute of limitation for a plaintiff's claim, a scheduled closing for completion of a transaction or deal, or some other imminent deadline, are already facing an uphill battle. Unrealistic deadlines can be red flags for a new representation.
Sometimes, there are good reasons a client is reaching out to an attorney to undertake a representation on the eve of a pressing deadline. But sometimes the reason a client needs an attorney at the very last minute is also a reason to have second thoughts about accepting the representation. It could be that an earlier attorney fired the client because the client did not pay. Or there could be insolvable problems which have left the client at the end of his rope.
This does not mean that an attorney should never accept a last-minute representation. Rather, it is just another factor to consider in the overall scheme.
Can the client pay?
Second, determine whether the client can actually pay the attorney's fees associated with the representation. Ethical obligations generally dictate that attorneys must explain their fee to their clients. Attorneys should also consider whether it seems likely that the clients can pay that fee.
Nothing good comes from a representation when the attorney starts out with no realistic chance of getting paid. The attorney assumes the risks of liability with no opportunity for compensation. It is a lose-lose proposition. This makes it an important prerepresentation topic which careful attorneys should address in a candid way.
There is rarely an answer that automatically means an attorney should decline a representation, other than those prospective clients who are seeking an attorney to assist them with an illegal or unethical goal, such as bringing a litigation simply to harass another party. Rather, each of these points are worth consideration. Each response presents unique risks to each practice.
Consider what's expected
Many client relationships involve the management of expectations. At the outset, many attorneys find it valuable to inquire about the prospective client's expectations for both the representation and the attorney.
Sometimes clients expect an unrealistic outcome. They expect their attorney to achieve the impossible through whatever means are necessary.
Rarely do these representations end well. Instead, a candid conversation about what is possible, along with a description of what the attorney can and cannot do, is important.
If there are things the prospective client expects which the attorney is unable or unwilling to do, the attorney may have an ethical obligation to decline the representation.
Conduct background research
The Internet provides cost-effective and fast tools for conducting some preliminary background research regarding prospective clients. Although this is not a necessary step, some simple Google searches may reflect a prospective client who has a history of problems that often extends to anyone and everyone around them.
Alternatively, a litigation search might reflect a prospective client who has sued their attorneys before. These are more data points to consider.
Consider a system
Many things are required to open a new matter at most firms, including, most obviously, a conflicts check. Some firms implement systems for screening clients for nonconflicts issues.
Inevitably, it is the one prospective client who escapes the screening filters that creates the most problems. In fact, for some clients, it is their ability to convince others to abandon the rules and ignore the systems that makes them the most risky clients.
As published by American Lawyer Media