Firing a Client

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One of the trickiest parts of starting and maintaining a solo practice is finding (and keeping) clients.

Because there is no guarantee that another client will walk in the door tomorrow, many attorneys cling to every potential client like there is no tomorrow.

Rest assured: tomorrow the sun will rise and potential clients will continue to call. And when a client’s actions dictate it, sometimes a lawyer has to fire a client.

What? Why would I fire a client?

Yes, there are situations where you will need to terminate your representation/withdraw from representation a/k/a “firing” a client. To many new lawyers, that is a foreign concept. Most new lawyers cannot get past the step of “I don’t have enough clients, why would I fire one?”

Trust me, you will fire a client sooner than you might think. It will be the best non-money you didn’t never make.

If you are effective at client intake, you should spot a problem client from a mile away. Unfortunately, not every problem client is that obvious. Those are usually the most problematic of problem clients.

As you read this, keep in mind that the majority of my practice is Plaintiff side contingency work. That means I spend a fair amount of time investigating cases and claims before I actually bring them. It also means it can be easier to terminate my representation, compared to once a case is filed, when there are a host of things to consider.

Here are the most common reasons why I consider, or ultimately end up firing a client.

Missed appointments/does not return calls or e-mails

People get sick all the time. People have sudden family situations and/or emergencies. People forget about appointments (even lawyers).

But there’s a difference between one sudden sickness/emergency/memory lapse and a pattern. I’m pretty good about giving clients a free pass for round one. But the standard of review goes way up on round two. My cases are on contingency and in federal court. If my client flakes out or disappears, I just wasted a whole bunch of time (that I’m not getting paid for) and the court is going to get really, really mad at me (and potentially sanction me).

If a client can’t find the time to meet with me (let alone talk to me), there’s no way I’m putting my license/reputation/time on the line for them. It’s that simple.

If my client does not return a phone call or e-mail, I usually follow up the same day (using the other communication method). If they still do not respond, follow up communications become more terse and direct. After that, I usually send a letter via e-mail and mail with some variation of “if you don’t contact me, I will terminate my representation.”

Frankly, if it gets to that point, the client needs to have a really good reason for ignoring me. The few clients that I have continued to represent in these situations usually end up disappearing again.

Changing stories

This is a tough one, because memories fade over time. It is not unusual for the details of my client’s stories to change as I investigate the case. There’s a difference, however, between the details changing and the entire story changing. You would also be well-advised to understand that client’s tell you their version of the story. Not the story. Their version of the story. When you start pulling the details, the story will change.

I wish I could quantify that, because sometimes details are big details, and sometimes they are little details. There’s also a huge difference between saying “this is exactly what happened” and then saying “I never said that” versus saying “here’s what I remember” and “you know, I got the order of events wrong.”

As noted above, this is where client intake is critical. My initial meetings are pretty long. To the extent possible, I lock in client memories (because I know they fade). They are instructed to go home and write a narrative as well. When I start to see all sorts on inconsistencies, red flags go up.

Yes, there are situations where everything changes. Those cases end before they start. But there are plenty of cases where it’s a judgment call for me.

Destroys evidence or it “disappears.” 

Not only is this a red flag, it can get your client (and/or you) sanctioned by the court for potentially destroying evidence.

Let’s talk about it on the front end for now. Client calls and says a debt collector left an awful voicemail for them. Client comes in and tells you they accidentally erased the voicemail. Or someone else erased it. Maybe it was an accident. Maybe.

Maybe the client took pictures or wrote down notes about the event that prompted a phone call to you. Maybe those disappeared between the time they called you (at which point you told them to save everything) and when they came in.

You want to really careful moving forward. You’ve got a client that does not follow instructions (red flag), has lowered credibility (red flag), and may have destroyed evidence (red flag/sanctions).

Disclaimer: I’ve had more than one client that forgot to bring notes/recordings/evidence to the initial meeting, but got it to me at a later date. That happens. But when it never shows up or magically disappears, hold your horses.

Your spidey-sense tingles

The absolute worst is when you have a solid case, with a solid client and solid evidence, but something is just not right. I just went through one of these non-cases. Everything was perfect: too perfect. Lesson learned: there is no perfect case.

Usually it’s something minor that raises an alarm. Sometimes it’s a false alarm, but sometimes it’s just the tip of the iceberg. I’ve been through that enough times to know that when something does not seem right, it’s time to dig deeper. There are plenty of reasons why you want to dig deeper, but let’s focus on two of them.

One, Rule 11 requires it. There’s no “well, I didn’t really want to look into that” special comment that protects you. Two, do you really want to move forward with a case if you have doubts? Doubt will grow exponentially as the case moves forward. I don’t know about you, but I hate surprises. More often than not (if you’ve done a good job with intake), your suspicions will reveal: nothing. Or maybe something very minor that will not derail the case.

The bottom line is regardless of when your spidey sense tingles, you need to stop what you are doing and take a closer look. You will save yourself some headaches (among other things) down the road.

Payment issues

About 75% of my practice is contingency based, and the remaining 25% falls into two categories: flat fee and retainer—with most of those being flat fee cases/services. In the vast majority of my retainer clients, I do not bill more than the original retainer (that’s on purpose). The bottom line is that I rarely have to request money from an existing client (also on purpose).

The closest I’ve come to an issue in this area is when a client forgets their checkbook when they sign a retainer. But all of those clients either hand delivered or mailed a check the next day. The gist of all of this is that one way to avoid this issue is to never let it become an issue. I either need a retainer or a flat fee before I do any work.

When a potential client balks at my fee, they do not become an existing client. If an individual is questioning my fees before I do anything, that is a bad indication of what will happen down the road. I know that because I’ve experienced it.

What scares me is the stories I hear from other young attorneys about “I’m really busy, but my clients are not paying me.” What’s really scary is when they say “this client actually hasn’t paid my bill for the last ____ months.” If your client has not paid you for months, they should not be your client. Chances are, that tab is going to get bigger and bigger—which will make it harder and harder to pay.

There are plenty of reasons why you may be willing to wait or forgive a late bill. But when there is a pattern of late payment/under payment/non-payment, then you need to step back and reevaluate the client. Some clients may have a great reason and a good heart. Others could just be taking advantage of you. You are the best position to evaluate that, but please understand that bad clients exist, and not everyone really wants to pay your bill.

Check the rules and your retainer

Before you brazenly terminate your representation, take a deep breath. There are lots of things you need to check first, otherwise you’ll find yourself captain of the titanic: destination the land of malpractice with a long stop at the port of office professional responsibility. You need to check your the rules of civil procedure, local rules, general practice rules, and rules of professional responsibility. And here’s a really good tip: if you have questions or concerns, ask a trusted attorney with experience or call your local office of professional responsibility.

Figure out when you should or can withdraw. Start with Rule 1.16 of the Model Rules of Professional Conduct. Some situations are “should withdraw” (you are not mentally or physically capable, or the client fired you) and some situations are “can withdraw” (client has made the representation unreasonably difficult, lawyer thinks client is using lawyer to engage in fraud).

Assuming you have a valid (and acceptable) reason, your jurisdiction may not allow withdrawal if it will cause prejudice to your client. For example, you try and withdraw the day before a hearing (or trial). Whether you are in state or federal court can make an enormous difference as well. In Minnesota, assuming you have a valid reason, you can file a notice of withdrawal state court. In federal court, if you do not have substitute counsel, you have to move the court to withdraw—and the standard is pretty high.

If you are able to withdraw, you also need to take reasonable steps to protect your client’s interests. Such as providing reasonable notice, returning their file, and returning any funds or providing a refund for any unperformed services.

Speaking of refunds—make sure you review your retainer agreement. Even if you were hired on a flat rate, many jurisdictions (like mine) require you refund all or a portion of the fee for any services that were not provided. If you were hired on a retainer, in case it was not obvious, you need to refund the remaining funds in your trust account. And here’s a friendly tip: don’t charge your client for writing a letter terminating your representation.

Anticipate it will happen again

I wish I could say that I’ve only fired one client. I’m pretty sure I’ve fired more than one client this month (I’m writing this on June 7). You could make the argument that I did a poor job with client intake. There’s probably some merit to that, but clients can appear (and check out) as great clients during the initial meeting and turn into potential nightmares by the second meeting (see above).

The bottom line is that you should anticipate there will be situations where you will need to pull the plug. The majority of my cases are Plaintiff side contingency cases. In distilled terms, my retainer says at the very top “you are hiring me to pursue a potential claim against a naughty debt collector.” Right below that it says:

Lawsuit may not be appropriate. Until I complete my investigation of your case, I do not know if a lawsuit is appropriate. I may withdraw from your case if I believe a lawsuit is not appropriate.”

There’s another paragraph on destroying evidence—advising clients on all the bad things that can happen if they do that—including my withdrawal as their attorney. And of course, there’s a paragraph dedicated to explaining when I am allowed to withdraw.

I love my job and I love my clients, but sometimes you need to pull the plug. Make sure you are prepared for it next time.

(photo: http://www.flickr.com/photos/gwilmore/50137422/)

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