A common statement from attorneys served with a malpractice complaint is, "I knew I shouldn’t have agreed to represent this client." Effective risk management begins with client screening, and such statements strongly suggest that the attorney might be able to improve his client screening. If this scenario rings true for you now and again, regardless of whether a claim has arisen from the scenario, you should take some time to reflect upon your client screening process.
Initially you should ask yourself questions designed to identify "problem" clients and those clients that you are unable to represent. "Problem" clients simply are those clients who are most likely to sue their attorney or file a disciplinary complaint. They are the clients who are difficult to satisfy, or are likely to become a collection problem.
During the initial interview, ask questions designed to ensure that your office has enough time, talent and funds to meet the client’s needs. Similarly, you should try to avoid dabbling in such high-risk practice areas as Intellectual Property, Real Estate, PI Plaintiff, Business Transactions & Corporate Formations, or any other area outside your practice specialties. You also should avoid taking on a new matter without enough time or resources to complete the work, or not having enough funds to cover expenses in a contingency fee case. All of these issues significantly increase the risk of an error.
You also must consider a few client issues. Although some of you may have difficulty conducting a thorough fee discussion up front, you must do so. The discussion doesn’t get any easier when a delinquency develops or if a client begins complaining about the fees that you failed to explain sufficiently up front.
Attorneys often find themselves in situations where a longtime friend or extended family member seeks legal services. Some attorneys even compound this situation by offering to do legal work for their staff, as a firm "benefit." I want to urge you, emphatically, to use caution in all of these situations, because these recipients of your good will also can be very litigious. If your potential client would be a "good will" client like a friend, relative or staff member, make certain that you are comfortable with the subject matter of the work.
If the prospective client brings you a new matter at the last minute, make sure you understand the reasons behind the delay. If you decide to accept the matter, make sure you have enough time and resources to investigate the matter properly. If the client cannot reasonably explain the delay, refuse the matter. Otherwise, you’re setting yourself up for trouble. If you don’t have enough time and resources to investigate the matter, refuse it. Every malpractice carrier has seen claims that arose because of an attorney’s mistake made while rushing to get the work done. Your goal should be to avoid a situation where you pay for the client’s procrastination.
Ask the prospective client how many attorneys he has contacted before coming to you. The answer will teach you something about the prospective client’s matter and/or the client himself. The higher the number, the greater the risk of a problem. A prospect who has visited a number of prior attorneys might want to avoid paying fees, or may be one who will be extremely difficult to satisfy. Heed the warning light.
Finally, ask yourself whether the prospective client behaves irrationally or appears to be confrontational. If you cannot work effectively with someone during the initial interview, it is unlikely to improve over time. The difficult client all too readily becomes the angry client that will not hesitate to bring a suit.
Regardless of your screening techniques, occasionally a problem client makes it through the screening process and becomes a firm client. When this happens, you have an opportunity to learn more about the loopholes in your screening process. Step back and ask yourself whether your own actions helped to create the problem client. Perhaps the client had some legitimate emotional needs (i.e., recently served with divorce papers) and you do not relate well to highly emotional individuals. Could your inability to meet your client’s legitimate yet non-legal needs have caused the client to be dissatisfied enough to become a highly volatile problem client? Perhaps so.
Some attorneys will struggle through the problem client relationships that they have. This isn’t a significant problem unless the situation arises more than once or twice a year. If the situation occurs that often, you have a new issue. Maybe you are unable to say "no," maybe you were thinking that if you decline the matter you might not get any more business for a while (and bills need to be paid). Whatever the cause, you have noticed that problem clients are more of a "norm" than they should be.
Consider this: stress-filled attorneys are more susceptible to errors. Even having only one problem client typically will demand a disproportionate share of your time – and at what cost to your other clients? Problem clients are unpleasant to interact with, difficult to satisfy, and often create collection problems. Doesn’t that situation sound stressful? Now, multiply that situation by the number of problem clients you deal with each year, and the stress becomes significant. I hear far too often that practicing law isn’t fun or personally fulfilling anymore. Problem clients and the problems they create can be a significant reason for dissatisfaction.
Remember, problem clients are more likely to file a malpractice suit or disciplinary complaint. They also tend to take a significant amount of your professional time, while returning little in the way of fee generation. They are a high demand, low reward client. From my perspective (and hopefully from yours too), the stress just isn’t worth the investment. Avoiding these clients can reduce stress, and actually can increase your firm’s income if you take the time you used to spend with problem clients, and use it to seek higher-quality clients. I also believe firmly that avoiding problem clients can lead to a renewed sense of personal fulfillment in one’s professional life.
These screening tips are not the last word on client screening. Instead, I just want you to know that it is worthwhile to ask what you can learn from your various successful and unsuccessful client relationships. Often we are so busy completing our daily tasks that the basic work effort and routine is all we accomplish. It seems a good idea to take some time now and again to ask "What can I learn from this? It’s especially wise to ask that question about those parts of our professional life that aren’t as satisfactory as we’d like. Hopefully, I’ve just given you another way to improve that level of satisfaction.
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