A legal malpractice claim can be an unsettling event for any attorney. In reviewing the data for legal malpractice claims, often there are trends and common themes among claims and even claimants. Some issues, with a little investigation, can become apparent early and may lead an attorney to decline a representation. For this reason, the practice of screening prospective clients for warning signs has become an increasingly valuable tool in legal malpractice claim prevention.
The concept of vetting clients seemingly conflicts with attorneys’ business and financial goals. Attorneys tend to lose some work due to conflict checks alone, so it can feel counterintuitive to identify other bases for turning down work. The issue with failing to screen clients is that it may increase the odds of taking on a problem client. Such relationships rarely improve during the course of a representation, but may instead end with a legal malpractice claim. The challenge, of course, is to screen out the problem clients without significantly impacting the attorneys’ business and financial needs.
This process can mean different things for different law firms, depending on the size, type, goals, and location of the practice. Regardless of these factors, every representation typically involves an evaluation of whether to accept a new client. Because it involves a judgment call, there is no one-size-fits-all approach to the prospective client screening process. There are, however, some common characteristics to consider.
Interview New Clients
While a prospective client may request a consultation to evaluate the attorney’s qualifications and suitability to handle a particular representation, the attorney may use this time to learn valuable information about the client as well. For example, one of the most telling questions to ask a new client is: “How many attorneys have represented you in this matter before now?” If the answer to that question is more than one or two, then the attorney might think long and hard about agreeing to become the next.
Clients who have terminated prior counsel may be less likely to be happy with the next one. It could be a sign that the client is unusually difficult to please or even reactionary. For those clients who routinely hire and fire their lawyers, they may be inclined to hire yet another lawyer to sue their last one.
Another question to consider is, “How many times have you been a party to litigation before?” While this is not a bright-line rule (large companies frequently are parties to litigation), potential clients who have overly litigious histories might raise some red flags. This is especially true for those who have made a career of suing other people for minor or perceived slights. Eventually, serial plaintiffs may make their way to suing their attorney.
Additionally, it is important to consider the realities of the proposed representation before deciding whether to continue. In making this assessment, many attorneys consider at least two things.
First, are there any pressing time constraints? Representations that begin on the eve of the expiration of the statute of limitation for a plaintiff’s claim, a scheduled closing for completion of a transaction or deal, or some other imminent deadline are already facing an uphill battle. Unrealistic deadlines can be red flags for a new representation.
Good reasons might exist for retaining a new attorney to undertake a representation on the eve of a pressing deadline. But the attorney can consider whether the reason why a client needs an attorney at the very last minute is also a reason to have second thoughts about accepting the representation.
Still, this does not mean that every last-minute representation is a high-risk proposition. It is just another factor to consider in the overall scheme.
Second, attorneys can consider whether the client can pay the attorney fees associated with the representation. The representation is unlikely to start off on the right foot if the attorney has doubts that the client will be able to pay the agreed fee. Further, clients who are unable to pay a fee may choose to justify that failure by alleging negligence on the part of their lawyers.
There is rarely an answer that automatically means an attorney should decline a representation, other than those prospective clients who seek an attorney to assist them with an illegal task or unethical goal, such as instituting litigation only to harass another party. Rather, each response presents unique risks to each practice.
At the outset, many attorneys find it valuable to inquire about the prospective client’s expectations for both the representation and the attorney. Sometimes clients expect an unrealistic outcome; they expect their attorney to achieve the impossible through whatever means are necessary. Such representations may lead to failure simply because the client cannot be pleased. Instead, a candid conversation about what is possible, along with a description of what the attorney can and cannot do, can be helpful.
If there are things the prospective client expects that the attorney is unable or unwilling to do, the attorney may have an ethical obligation to decline the representation.
Research Prospective Clients
The Internet is a fast, cost-effective tool that attorneys can use to conduct preliminary background research regarding prospective clients. Although this is not always fruitful, some simple searches may reveal prospective clients who have a history of legal or business problems that could raise red flags. Alternatively, a case or docket search might reflect a prospective client who has sued their attorneys before. These are more data points to consider.
Consider a System
Many firms will require specific steps before opening a new matter, such as a conflicts check. Some firms also implement systems for screening clients for non-conflicts issues. Inevitably, it is the one prospective client that escapes the screening filters that creates the most problems.
Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons’ global insurance sector team. Alanna Clair is a senior managing associate at Dentons and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”