Dealing with Problem Clients
By Thomas P. Sukowicz

Although sometimes representing a client is rewarding, other times it can be a nightmare. Dealing with problem clients on a daily basis is difficult enough, but these clients are also likely to contest the lawyer's fee, file a bar grievance or make a claim for malpractice.

Unrealistic Expectations

A client with unrealistic expectations is a problem because, when the client's expectations are not realized, the client is likely to be dissatisfied and to blame the lawyer for not achieving the expected result. The client's unrealistic expectation could be about the ultimate result obtained. Sometimes, the lawyer assists in creating the unrealistic expectation in the mind of the client. For example, in Thomas v. Bethea, 352 Md. 513, 718 A.2d 1187 (Md. 1998) an attorney who had filed an action alleging that his client had suffered permanent and irreparable brain damage and requesting damages of $1million, recommended that the client settle for $2,500. The client later sued the lawyer for recommending that she accept the inadequate settlement, resulting in a judgment for $125,000 against the lawyer. At the trial, the lawyer acknowledged that he believed that the Complaint was well founded in fact and in law. It was no wonder that the client was dissatisfied with the amount of the settlement.

Other unrealistic expectations could be related to the length of time that it takes to conclude a matter or the amount of fees the client will have to pay to obtain the desired result. It is not uncommon for clients to file bar grievances against attorneys claiming that they prolonged the case and billed for unnecessary fees. When a client's expectations are not met, the client will become a problem by not paying fees, not reimbursing the lawyer for the costs incurred, filing a bar grievance or suing for malpractice.

The solution is effective communication about what the client can reasonably expect. During the initial client interview, ascertain the client expectation as to the result to be obtained, the amount of time it will take and the cost to the client. Discuss those matters in the engagement letter. Throughout the representation, be sensitive to signals given by the client about unmet expectations. If the client's expectations are unrealistic, take time to adjust the client's expectations. Send written communications to the client with information about what the client may reasonably expect. If the client's expectations continue to be unreasonable, consider declining the representation.

Improper Motives or Goals

A related problem is that of the client with an improper motive, such as revenge or punishment. Such a client might direct the attorney to engage in scorched earth tactics "no matter what it costs." The client will likely not be satisfied with any result that does not sufficiently punish the adverse party. Or, after the passage of time, the client's ardor for punishment or revenge may diminish and the client will balk at paying fees in excess of the amount in dispute.

Be cautious in agreeing to accept a client whose motive is punishment or revenge. If the engagement is accepted, have the client acknowledge in writing what a realistic outcome is likely to be. Remind the client of this throughout the representation. If the client's improper motive surfaces after you have taken the case, consider withdrawing when it reaches the point where the client's desire for revenge or punishment is likely to result in the client's ultimate dissatisfaction with you.

Dishonesty

A dishonest client is a problem for a number of reasons. The first reason is financial. Dishonest clients are less likely to pay fees that are owed. If the client is dishonest with others, the client may also be dishonest with his or her lawyer. One reason that lawyers do not get paid is that the client dishonestly entered into an agreement never intending to honor it.

A client's dishonesty can sometimes cause the lawyer to be subject to motions for sanctions under Federal Rule 11 or the state equivalent, or a claim for aiding and abetting a client's fraud. For example, in Hefferman v. Bass, 467 F.3d 596 (7th Cir. 2006), the court held that the plaintiff had adequately pleaded a claim of aiding and abetting fraud by alleging that an attorney drafted the document used by the client to perpetrate the fraud.

Bringing and action that lacks evidentiary support can also subject a lawyer to a malicious prosecution or abuse of process claim. In Seltzer v. Morton, 154 P.3d 561 (Mt. Sup. Ct. 2007), an attorney filed the baseless law suit without adequate investigation and ordered to pay punitive damages of $9.9 million.

To the extent reasonably necessary under the rules of the jurisdiction in which the lawyer practices, the lawyer should investigate the factual and legal basis of a client's claim or defense before asserting it. The investigation may include checking readily available corroborating evidence.

To determine whether a client is dishonest, a lawyer can conduct an Internet search to see what information is available about the client or check the civil and criminal index for cases involving claims against the potential client for dishonest activity. An attorney can reduce the risk of a claim by asking the adverse party or opposing counsel to provide any information that contradicts the client's version of the facts.

Client's Discovery Misconduct

A client's misconduct during litigation may result in a sanction against the attorney. For example, in GMAC Bank v HTFC Corp., 248 F.R.D. 182 (E.D. Pa., 2008), an attorney was sanctioned because he did nothing when the client refused to answer questions or gave evasive or non-responsive answers at his deposition. In Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D.Cal. April, 2008), when the client did not produce documents requested in discovery, the attorneys were sanctioned and referred to the State Bar because they accepted the client's unsubstantiated assertions that its search for documents was sufficient, despite signs that it was inadequate, and failed to investigate after certain documents were identified during the trial.

Lawyers are well advised to make a written record of the lawyer's advice to the client to comply with discovery requests and to provide the information legitimately sought by the adverse party.

Reject the Lawyer's Advice or Change Their Minds

Another problem client is the one that does not follow the lawyer's advice, but instead, insists on taking a contrary course of action. If the client is dissatisfied with the outcome, the client will likely blame the lawyer. The lawyer should consider withdrawing from the representation of such a client, or prepare for the client's possible claim by having the client acknowledge in writing that the client chose to act contrary to the lawyer's advice, after having been advised of the potential adverse consequences of following such a course of action.

A similar problem client is the one that agrees to settle, and then changes his mind. Sometimes, as in Barnard v. Langer, 109 Cal. App.4th 1453, (2003), the client accepts and then rejects a settlement offer, and interjects the attorney's fees into the settlement discussion. Other times, the client accepts the settlement and then sues the lawyer for settling too low.

One way to address this problem is to commit the client's decision to settle the case to writing, with the client's acknowledgement that he or she is knowingly agreeing to the settlement offer and that the offer is a fair resolution of the dispute. There may be other facts that the writing may ask the client to acknowledge, depending on the circumstances of the case.

Client Who Disappears

A client who disappears creates several problems for the lawyer. For one thing, the lawyer may not even know if the attorney-client relationship has terminated because of the client's death. Aside from that issue, courts have held that attorneys need specific authorization by the client in order to take certain actions. In In re Walner, 119 Ill.2d 511, 519 N.E.2d 903 (1988), the court held that, absent a specific power of attorney authorizing the attorney to settle a client's claim under specific circumstances, the attorney did not have the authority to accept a settlement offer. In Blanton v. Womancare, Inc., 38 Cal.3d 396, 212 Cal. Rptr. 151 (1985), the court held that an attorney did not have the authority to agree to binding arbitration on behalf of a client without her consent.

When a client disappears, the lawyer should make every effort to locate the client. If those efforts fail and the client cannot be found, the lawyer should follow the procedures for withdrawal, since further representation may require specific client consent or disclosure of the client's disappearance, the disclosure of which could be detrimental to the client. Notice to the client by any and all means available should be attempted. Consider non-suiting a case so that it can be refilled if the client resurfaces.

The client intake form should include all possible contact information for the client, including home, office and cell phone numbers, fax numbers, e-mail address(es), home and office addresses, and a person to contact if the client cannot be reached. The engagement letter should include a paragraph setting forth the client's agreement to cooperate with the firm by being available and always providing current contact information, with the client's acknowledgement that failure to comply with that agreement could result in the firm's withdrawal.

Impaired Client

A client who appears to be impaired in his or her ability to make decisions regarding the representation may also be a problem. If the client is paranoid, for example, seeing conspiracies everywhere, that client may later see the lawyer as part of a conspiracy to deprive the client of what was rightfully his or hers. Clients may have a poor grasp of reality or have difficulty understanding what is happening, and later falsely charge that the lawyer did or said things that hurt the client's case.

If the impairment is severe enough, under most states' ethics rules, like ABA Model Rule 1.14, the lawyer may petition to have a guardian (perhaps a limited guardian) appointed to assist the client in the litigation. Rule 1.14 provides that the lawyer should maintain a normal attorney-client relationship to the extent possible. Short of that, it is the lawyer's responsibility to take other remedial measures to protect the client's interest. These measures might include consulting with the client's family or asking the court to assist in making a record that the client's decision is informed.

Conclusion

Lawyers can try to recognize problem clients during the initial consultation and decline to represent them. If the problem is recognized later, the lawyer can either withdraw or take steps to protect himself or herself by making a written record of the attorney-client communications, particularly regarding decisions about the handling of the legal matter.