Popular culture and political pundits may offer reasons why our post-COVID world still seems chaotic. Whatever the reason, the reality is that attorneys are increasingly facing challenging client issues. Here are strategies for dealing with difficult clients.     

Avoid getting involved with a difficult client in the first place! Avoiding difficult clients from the outset seems like straight-forward advice, but it may not be easy to identify a difficult client. The first step is to screen all initial contacts from prospective clients. Evaluate, first, how the client came to you. Is it a recommendation from a current or former client? Do you know the referring attorney? Does the contact form on your website requesting representation provide any insight into the client?  

Confirm the prospective client’s issue is in your practice area, whether there are time sensitive deadlines approaching, and whether they have had prior representation on this issue. Having a series of prior lawyers is often a sign of a difficult client.    

 Use a Client Inquiry Form to obtain basic information for conflicts of interest check. During these initial interactions, be alert for unrealistic expectations by the client. Trust your instincts! This is important during any part of representation, but especially before the attorney/client relationship is established. If your “gut reaction” is negative – Listen!  

Evaluate conflicts of interest using the information from Client Inquiry Form. Additional information may be needed after the initial conflict of interest (COI) check. Be sure to check for “FKA” (Formerly Known As) and “NKA” (Now Known As) names. Names of organizations and business entities should also be carefully vetted to account for business transitions, mergers, and acquisitions.   

Complete the COI check BEFORE undertaking representation. A lawyer-client relationship can quickly disintegrate if the client believes that the lawyer’s duty of loyalty is compromised by a COI. If the check reveals a potential conflict of concern, disclose potential conflict issues at the outset and seek informed waivers where appropriate. Continue to evaluate conflicts that may arise during representation and promptly address them.  

Listen to client! After the potential client clears conflicts, use a comprehensive client intake form to obtain full information for the representation. See OfficeKeeper General Information Questionnaire and modify for your practice. Use this information to discuss your representation. Pay attention to what the client is telling you about the situation that brings them to you. Discern if they have a legal problem that you can address and establish reasonable expectations. See Rule 1.2 of the Ohio Rules of Professional Conduct – Scope of Representation and Allocation of Authority Between Client and Lawyer and Ohio Ethics Guide: Limited Scope Representation.   

Unreasonable client expectations are a red flag! If the client’s expectations can’t be changed with the benefit of reason, logic, and proper legal counsel, it is recommended to terminate the representation. If you catch any of these issues before undertaking representation, immediately send a Declination Letter that makes it clear you have not, do not and will not represent them. Advise the potential client that they should immediately seek other legal counsel and may only have a limited time to do so. Unless the deadline is exceptionally clear, it is best to avoid including a specific deadline in this letter.  

Use a written fee agreement that complies with Rule 1.5 Fees and Expenses if you decide to undertake representation. This document is intended to explain to the client what your representation will be, the scope of your work, how you will bill, and your expectations for client cooperation and payment.   The Evergreen Retainer is a useful form for basic fee agreements. 

Communication is key! Determine the best way to communicate with the client – email, text, calls. Clearly set out parameters for client contact and attorney response. Expectations of responsiveness, time responding to texts, calls, and other communications – including any charges. Be mindful of Rule 1.4 Communication to make sure that the client understands what is happening at every stage of the representation and thoroughly document those communications in writing. Tell the client when you will provide updates – and do it!  

If the client doesn’t agree with a recommended course of action, decide whether the client’s refusal to follow advice is significant enough that you should withdraw from representation.  If you decide to continue, have the client acknowledge in writing they understand what legal action you recommend and that they have instead asked you to proceed in another direction. However, 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.  

Establish a billing schedule. Let the client know when you will send invoices. If the client does not pay – don’t ignore it! Have a policy on client payments and receivables and make sure that the policy is followed for each client. If the client is not paying and raising unfounded objections, consider terminating representation – and quite literally cut your losses!  

Withdraw from representation following the requirements of Rule 1.16 Declining or Terminating Representation. The Rule permits a lawyer to withdraw from representation of a client if the representation has been rendered unreasonably difficult by the client. Do not continue to represent a client who has made the representation unreasonably difficult. Do not continue to represent a client who has accused you of malpractice or unethical conduct. Do not continue to represent a client who refuses to pay you. Continuing to represent a difficult client rarely fixes these problems.  

If you decide to withdraw and permission of the tribunal is required, carefully consider how that Motion is written. Rule 1.6 will govern disclosure of information in that situation. Review the Local Rules of Court. Don’t delay filing! 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!  

Conclude the representation. If you do decide to continue to represent the difficult client, continue to diligently document your file.  When the representation is concluded, send a File Closing Letter, give the file to the client and get a receipt for the file.   

We can’t cover every difficult client situation with these strategies. Follow the Best Practices Checklist: Strategies for Dealing with Difficult Clients checklist.  If you have a difficult client, please give us a call. We’re here to help!  

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.