ISBA lawyers offer various ways to deliver the message, but all agree that you can’t be afraid to tell would-be clients “no” if representing them doesn’t feel right.
If you’re in private practice, you dedicate significant time and energy to keeping your existing clients and bringing in more. But there comes a time for everyone when you have to switch from that mode to telling some prospective clients that… you’re just not that into them. How can lawyers decline to represent prospective clients effectively and unambiguously, yet kindly and without offending?
The topic recently came up on ISBA’s general electronic discussion group when Sandwich lawyer Dawn Weekly wondered how others handle prospective clients who present such behavior as making and canceling appointments at the last minute and calling excessively – six messages over the weekend for Weekly from one would-be client. Other members shared tales of their own of clients calling lawyers at home and on weekends about non-urgent matters, showing up at the lawyers’ homes, and expecting immediate responses to any and all voicemails, faxes, or emails.
Just say “no”
The universal advice on whether to represent these troubled people? Just say no.
“You already know the answer,” said Chicago solo Tonya Primus. Warning of the all too real possibility of a formal complaint against the lawyer from a person exhibiting the tendency toward perpetual dissatisfaction, Waller advised “Just like a bad relationship, just walk away gracefully.”
Agreeing, Chicago lawyer Colleen L. Sahlas said she handles prospective clients such as the person Weekly described by telling them she can’t represent them. She added, “Sending a followup letter is also helpful to clarify that you do not represent them and were never retained to represent them.”
Other lawyers advised against trying to soften the message unduly. Urbana lawyer Thomas A. Bruno said, “I don’t think it’s ever a good idea to say ‘I am just too busy right now.’” How, Bruno wonders, would a lawyer respond to the rejected prospective client who learned that the lawyer accepted a coworker’s case the very next day? (Similarly, naming a retainer fee somewhere in the stratosphere as a condition of representing a difficult person may prove unwise when the person shows up at your office with a certified check for that amount in hand.)
As a graceful way to decline representation, Bruno offered “Simply say: ‘I have thought about it and I do not want to take your case. I suggest you keep looking for another lawyer that may be a better fit.’”
Mokena lawyer Judy A. Goldstein offered some truthful, but courteous, messages of her own that she’s used to decline representation. “Sometimes I am able to state that I am not accepting cases in courthouse X. More often, however, I simply tell the potential client that I can see how important the case is to him/ her but unfortunately I just do not have the personnel to give the client the kind of immediate and intense attention s/he might need. I have never had anyone offended by this discussion.”
Goldstein adds that she follows her gut feelings in deciding whether to represent someone. “I made it an office policy a long time ago that if I have bad feelings about a potential client from the get-go, or if that person offended anyone in my office, I follow my instinct and decline representation. It’s hard enough to keep a really good relationship with some people during the course of the representation and is much worse if we don’t start out on a good foot.”
Trust your instincts
Champaign solo John Bramfeld advocated being every bit as direct as Sahlas, Bruno, and Goldstein, but explaining more comprehensively the lawyer’s reasons for declining representation. Sug gesting that lawyers have the opportunity to help such troubled people correct their problematic behavior, Bramfeld argued in favor of citing the six phone calls over the weekend, or the alcohol on the prospective client’s breath at 10 in the morning, as reasons for refusing to accept the person’s case. “If we all resolve to tell more of the truth, we can do some good.”
The discussion inspired Huntley solo practitioner TJ Thurston to create and invite comment on a list of attorney-client rules and policies (see www. illinoislawyernow.com/2009/09/15/rules-of-the-road-for-clients). Carroll County lawyer Kipp Meyers, in turn, drafted a list of red flag behaviors, any of which, when exhibited, indicates to him that a prospective client should be avoided.
Lawyers also recognized that prospective clients exhibiting borderline or unacceptable behavior may be doing so out of stress from the very legal problem that drove them to consult a lawyer and not because they are fundamentally problematic people. Noted Primus, “The emotional client may even get therapy one day and become a reasonable client in the future.”
But participants recognized that it’s not always easy to tell the potential Good Clients from the Clients From Hell. Offered Ottawa lawyer Melissa Maye, “Normal people want to focus on the solutions. Drama Queens want to wallow in the problem.” In the end, though, said Chicago solo Cary Rosenthal, it’s about the lawyer’s instincts. “As soon as it doesn’t feel like a good fit, it probably isn’t.”
To read the discussion threads, go to ISBA’s general discussion group by visiting http://www.isba.org/discussions. Once you’re logged in, look for threads headed “Unwanted client” dated August 24 and 26, 2009.