November 2015 Bar Bulletin
Avoiding Fee Disputes and Fostering Peace of Mind: Passing on the Problem Client and Case
By: Michael R. Caryl and David C. Burkett
Someone once said that the practice of law would be a great profession but for the clients. There is more than a little truth in this witticism. The practice of law can be rewarding. But sometimes it can also be awful.
While the vast majority of clients are decent, well-meaning people who simply need legal help, there is in our experience a growing segment of clients who are problematic at best; and, at worst, some graduate to the level of "clients from hell."1 The client from hell is one who disputes fees, attacks the attorney and uses legal malpractice as a lever.
Michael Caryl began handling his first of these disputes about 24 years ago. Read Taylor v. Shigaki2 to see what abuse can be inflicted on an attorney. Caryl's client - the attorney in the underlying matter - represented a client who: (1) would not pay fees; (2) was nasty and critical; (3) harassed the attorney on an almost daily basis; and (4) caused endless trouble with staff. The client eventually fired the attorney.
What followed was 24 months of litigation over unpaid fees and every one of the client's gripes. What is worse than working for a nasty client who will not pay you? It is far worse to get embroiled in vicious, expensive and uncertain fee litigation with that client, all while you still must try to earn a living.
The good news is many attorney-client disputes are preventable. It takes planning and good judgment. Most disputes can be prevented on the front end, by taking steps to avoid poor client selection, poor case selection, poor fee arrangements, and poorly drafted written fee agreements or (worse) no agreement at all. We call this process "client and case de-selection."
All kinds of lawyers get into fee disputes. Many of the authors' lawyer-clients in fee disputes are good lawyers with years of experience. Whether rookie or seasoned professional, all attorneys can practice common sense screening of clients and cases, and develop and utilize good fee agreement processes and billing practices. If these steps do not prevent later fee disputes, the attorney will at least be better positioned with a solid chance of prevailing.
Characteristics of Problematic Clients
From our own practices and in representing dozens of lawyer-clients in disputes with their lay clients, we have identified many characteristics of these problem clients. Among them is a client who: Substantially misrepresents the facts or evidence to you at the time of the intake interview. (You learn too late.) Regularly calls you at the office at all hours of the day, and leaves multiple after-hours cell phone voicemails. Routinely calls you on your cell phone at any hour, although you have instructed the client to use your cell number only in true emergencies. Drops in routinely at the office without an appointment. Sends multiple emails almost daily, many of which are emotional, and at all times including nights and weekends.
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