Attorneys have always had their fair share of difficult clients. However, challenging economic times, such as those recently thrust upon our profession by the COVID-19 pandemic, often increase the number of these precarious situations, making the practice of law even more challenging. The following recommended best practices may help you navigate the treacherous waters of difficult clients.
Good communication is key to successful and mutually rewarding attorney/client relationships. Thorough and timely documentation of those communications, throughout each stage of representation, not only clearly conveys the communications needed but also provides much needed proof of communications when memories fail.
Begin the relationship clearly. Utilize a good initial client contact form that elicits complete information for your conflicts of interest check. Be sure your conflicts checking system identifies and examines past representation and former identities of the client and potential parties. (See Rules 1.7 – 1.14 Ohio Rules of Professional Conduct.) If there are any questions that arise from your conflicts check, address them immediately and completely. Addressing and responding to actual or potential conflicts of interest after the attorney/client relationship has begun not only creates a plethora of problems, but may cost you the representation and the fees already collected.
After the potential client clears conflicts, use a comprehensive client intake form to obtain full information for the representation the client is seeking. This information can be the basis for your discussion with the client about what your representation will entail. (See Rule 1.2 of the Ohio Rules of Professional Conduct – Scope of Representation and Allocation of Authority Between Client and Lawyer)
Listen to what the client is telling you about the situation that brings them to you. This is the time to discern if they have a legal problem that you can address and establish reasonable expectations. If the client has unreasonable expectations (a red flag we commonly warn about), determine whether the client’s expectations are changeable with the benefit of reason, logic and proper legal counsel, or immovable. If the latter, we recommend avoiding such an engagement. If you decide NOT to undertake representation, send a Declination Letter that makes it clear you have not, do not and will not represent them and if they desire to pursue their legal matter, they should immediately seek other legal counsel. It is best NOT to state a specific time-period in this letter.
If you decide to undertake the representation, use of a written fee agreement that complies with Ohio Rule of Professional Conduct 1.5 – Fees and Expenses may help avoid future disputes with a difficult client, especially over fees and expenses. Moreover, we recommend that clear engagement letters be utilized in every matter handled for every client. We will discuss fee agreements and engagement letters and the recommended components of each in a future OBLIC Alert.
As the representation continues, be sure to keep the client updated on all developments in the representation. (See Rule 1.4 of the Ohio Rules of Professional Conduct – Communication.) If consent of the client is required, it should be obtained in writing. This is often another point of divergence in the representation of a difficult client. If the client does not agree with a course of action you recommend, consider whether the client’s refusal to follow advice is significant enough that you should withdraw from representation. If you decide to continue, please have the client acknowledge in writing that they understand what legal action you recommended and that they have instead asked you to proceed in another direction. However, it is important that you do not attempt to create an agreement that prospectively limits your liability to the client for a claim for malpractice. (See Rule 1.8 of the Ohio Rules of Professional Conduct.)
Regular billing should be part of the representation in keeping with the written fee agreement. The regular billing is best to be sent shortly after one of the regular updates sent to the client. These updates are best sent monthly. Remember that an Evergreen Retainer can be an effective billing tool.
If the difficult client does not pay your invoice, do not ignore it! Give the client a call to determine why the invoice has not been paid. Depending on the response, this may be another departure point in the representation. If the client is not paying and is raising objections to your invoice and what you are doing, consider whether you want to continue the representation or withdraw and quite literally cut your losses!
If you decide that you should withdraw from representation, carefully consider the requirements of Rule 1.16 of the Ohio Rules of Professional Conduct. This includes the duty to give notice to the client of your withdrawal and to provide the client file whether the client has paid for the legal services to date or not. (See Ohio Board of Professional Conduct Opinion 2019-6 Ethical Obligation to Deliver a Former Client’s File.) It also requires the return of any unearned legal fees, regardless of whether termed “nonrefundable” or “earned upon receipt” (See Ohio Board of Professional Conduct Opinion 2016-1.)
If you decide to withdraw and permission of the tribunal is required, carefully consider how that filing is written. If the attorney withdraws from representation, no matter how much the client begs for the attorney to reconsider and re-enter the representation – DO NOT do so! Once you’re out – stay out!
Following these best practices should help you deal with difficult clients. If you decide to continue to represent the difficult client, continue to diligently document your file. It is important that you send a File Closing Letter upon conclusion of the representation, give the file to the client and get a receipt for the file.
Of course, this article cannot cover all difficult client situations. If you have a question about this topic or any other loss prevention issue, please do not hesitate to contact me at OBLIC. We’re here for YOU!
Gretchen Mote, Esq.
Director of Loss Prevention
Best Practices for Dealing with Difficult Clients
Have Initial Client Contact Form to obtain information for Conflicts of Interest Check
Include information on other legal representation and former client identities
Perform Conflicts of Interest Check
Follow up as needed
Use Client Intake Form to gather full information for potential representation
Review form with client
LISTEN to client’s narrative of situation
Decide if you will undertake representation
If do not undertake representation – send Declination Letter
If undertake representation – send Engagement Letter
Sign Written Fee Agreement
Establish reasonable expectations
Consider Evergreen Retainer
Provide regular updates to client
Document important client decisions in writing
If client does not follow advice – consider withdrawing
Send regular monthly invoices
If client does not pay – follow up immediately
Consider withdrawing if nonpayment continues
Withdraw from representation if needed
Follow Rule 1.16 requirements
If representation of difficult client proceeds to conclusion
Send File Closing Letter
Give file to client and obtain signed receipt for file
