Many legal malpractice claims arise from attorney-client relationships that have been rocky for some time. In fact, looking back, sometimes the attorney can see that the problems began or were predicted at the very beginning of the relationship, when the attorney was first retained. For this reason, the concept of screening clients prior to an attorney-client relationship has become an increasingly invaluable tool in legal malpractice claim prevention.
The idea of screening clients is antithetical to many attorneys’ financial goals. Conflict checks can cause attorneys to lose some work, so few attorneys are looking for other ways to reduce their client base. However, problem clients rarely get better with time. Instead, over the course of a representation, problem clients can go from being challenging relationships to legal malpractice claims in progress.
Screening clients generally means different things depending on the size, type, goals and location of a law practice. In the end, every representation typically involves the exercise of an attorney’s judgment about whether to accept a new client. Because it involves judgment, there is no singular formula for every decision regarding whether to accept a new client, but there are some common factors to consider.
Question Prospective Clients
Common sense goes a long way in detecting and avoiding problem clients. 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 “seven,” then the attorney can think long and hard about becoming the eighth.
Clients who have been unhappy enough to hire and fire seven attorneys before are unlikely to be happy with the eighth. Similarly, if the seven previous attorneys refused to take on the case, that might raise additional questions as to why.
There are other similar questions aimed at identifying the pros and cons of proceeding. For example, another question to consider asking prospective clients is, “How many times have you been a party to litigation before?” Although being a party to litigation is not itself unusual, potential clients who have overly litigious histories may raise some red flags. This is especially true for potential clients who have made a career of suing other people for minor or perceived slights. Eventually, these serial plaintiffs may make their way to suing their attorneys.
There is rarely an answer that automatically means an attorney should decline a representation, other than those prospective clients who are seeking an attorney to assist them with an illegal or unethical goal, such as bringing a litigation simply to harass another party. Rather, each of these points are worth consideration. Each response presents unique risks to each practice.
What’s the Deadline?
It is also helpful to review the “ask” of the new matter before deciding whether to continue. When must the work get done? What is the first deadline for the new matter? 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 sometimes can indicate that the client is unrealistic about other things as well.
Sometimes there are good reasons why a client is just now reaching out to an attorney to undertake a representation on the eve of a pressing deadline. On the other hand, sometimes 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. It could be that an earlier attorney fired the client because the client did not pay or because the matter did not appear colorable.
Of course, this does not mean that an attorney should never accept a last-minute representation. It is just another factor to consider in the overall scheme.
Can the Client Pay?
Attorneys often take time to explain or document their fees to their clients. However, attorneys may also consider whether it seems likely that the clients can pay that fee. If the client is unable to pay for legal services, contrary to the attorney’s expectation, the attorney may then be assuming the risks of liability with no opportunity for compensation.
Consider the Client’s Expectations
Client relationships often involve the management of client expectations. 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 can be rife with misunderstanding down the road. Attorneys in such a situation may consider a candid conversation about what is possible, along with a description of what the attorney can and cannot do.
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.
Conduct Background Research
The internet provides attorneys cost-effective and fast tools for conducting some preliminary background research regarding prospective clients. Although this is not a necessary step, some simple searches may reveal prospective clients who have a history of business or ethical problems that could complicate a legal representation. Alternatively, a litigation search might reflect a prospective client who has sued their attorneys before. These are more data points to consider.
Implement a System
Many firms require specific steps before an attorney is permitted to open a new matter, including 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. In fact, for some clients, it is their ability to convince others to abandon the rules and ignore the systems that makes them the most risky clients.
Shari L. Klevens is a partner at Dentons and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team. Alanna Clair is a senior managing associate at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”