Personal Productivity for Lawyers
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Many of the posts on Lawyerist focus on how to get good clients; we spend very little time talking about how to get rid of bad clients. As a general rule, the goal is to keep the clients around once they hire you. Nevertheless, for some clients, the lawyer’s advice should be limited to “don’t let the door hit you on the way out.”
Lawyers are typically reluctant to withdraw from representing clients. Several of the most important principles of lawyer ethics —confidentiality, avoidance of conflicts, holding funds in trust— are built on the idea of loyalty to the client. Many old school lawyers believe that once you agree to represent a client, you stick with them until the bitter end, even if you are the one left with the sour taste in your mouth.
The Model Rules of Professional Conduct, however, do not require a lawyer to go down with the client’s ship. To the contrary, Rule 1.16(b), which has been adopted by most jurisdictions, says that a lawyer may withdraw from representing a client if the “withdrawal can be accomplished without material adverse effect on the client.” Note that the rule does not require that there be no adverse effect on the client at all, just that the effect not be material. Presumably, every withdrawal before a matter is completed will have some adverse effect on a client – the hassle of finding a new lawyer, getting that lawyer up to speed, some additional cost to the client, etc.
Often, by the time the lawyer gets to the point of wanting to withdraw, the matter will have progressed far enough that there will be some material adverse effect on the client. In those cases, the lawyer must to look to the other subparts of Rule 1.16(b) to see if the lawyer‘s reason for withdrawing is sufficient to overcome the material prejudice to the client (and, of course to determine whether any presiding court will allow the lawyer to get out). Conflicts of interest, client fraud, and the client’s refusal to cooperate with the lawyer may fall into this category. But there are many cases in which a lawyer has discretion to decide that his or her time would be better spent elsewhere. Here are a few examples:
Do you hear that barking sound? When that car accident case came in, it sounded great. Your injured client was the breadwinner in the family, the other driver was clearly at fault, and there was lots of insurance coverage to go around. As you started gathering information, however, you learned about the client’s pre-existing medical conditions, spotty work history, faulty recollection, and fondness for the drink.
Sure, you could stick with the client and try to get the best deal that you can under the circumstances, assuming that you can readjust the client’s expectations from a high six-figure recovery to something less than the cost of a new car. It is not unusual though to see a lawyer avoid a tough conversation with the client, hope that the client’s injuries will “mature” (a real consideration in some cases, less so in others), and let the file collect dust in a remote corner of the office. These are the types of files that turn into ethics complaints for neglect or non-communication. Instead, if the case is pre-suit and not close to a statute of limitations deadline, you can withdraw.
Sorry, I forgot my checkbook. The first few months of the attorney-client relationship are critical for figuring out whether the client is going to pay the lawyer’s bills. Human beings are remarkably consistent creatures. Clients who pay their bills within a week or two of when they get them are likely to keep doing so. Clients who need three written reminders and a phone call, or who promise to pay and do not follow through, will maintain that pattern throughout your representation. When clients fall behind on their bills, lawyers may become frustrated or angry and cross some ethical line in trying to collect their fees. Let the next lawyer be the one who ends up representing your client for free. Get out before the receivables start aging.
Talk to the hand. You (hopefully) have several dozen clients. Your client has one lawyer. Some clients are oblivious to this imbalance. Combine that with the high emotions of a custody battle and you may get a client who calls you multiple times a day, demanding action against an estranged spouse. Emotional, needy clients not only eat away at your time but they drain the energy of your staff and may even be abusive when they do not get what they want. Sure, there are ways to manage your client communications. Some clients though are so demanding that they will overwhelm you. Withdraw from representing the problem clients and save your energy for the rest of your docket.
If you do decide to withdraw, keep the explanation simple. Avoid the urge to provide the client with a laundry list of his or her faults. And be generous in refunding fees. That way you look less like the stereotypical greedy lawyer and the client has some funds to try to find a new lawyer, likely one who is less savvy than you are about choosing which clients to represent.