A lawyer who has been practicing for any length of time at all no doubt has encountered the "difficult" client. This is not necessarily the client who simply presents a difficult case with complex legal issues, the client who stops paying a lawyer’s bills as it nears bankruptcy or even the client who involves the lawyer in conflict of interest or ethics problems.
The difficult client is difficult in a human-relations sense. It is the client who regularly says, "I want it tomorrow," who demands, "Do not put that lawyer on my case," or who always seeks detailed explanations for every letter a lawyer writes or motion a lawyer wants to file. The difficult client confronts the lawyer with "Your bill is too high" or "What do you mean I can’t do that deal?" A client who is difficult is the overseas client who insists that the lawyer wake up very early in the morning and make a telephone call to the client at 3 a.m.
Difficult clients, in other words, are the clients who not only put themselves first (from a practice-development perspective, lawyers probably should put clients first, too), but who think only of themselves (which is an unpleasant extreme).
Lawyers should focus on the issue of dealing with a difficult client at the intake stage of the relationship. They should analyze the risks they may be running by agreeing to represent a difficult client - if the client has had four different lawyers on the same matter over the preceding eight months, the new lawyer may want to refuse to represent the client.
Deborah Addis, the president of Boston-based Addis & Reed, Inc., a law-firm consulting company, points out that a difficult client may be the kind of person who is more likely to file a malpractice action if the result is not satisfactory than a more reasonable and understanding client would be. At the least, the difficult client may force the lawyer to spend more time than warranted on a matter, some - or a lot - of which the lawyer will be unable to bill.
Of course, it is not easy for lawyers to turn away business, especially when their cash flow is suffering and clients are not exactly knocking down the office door. Fortunately, there are ways for a lawyer who agrees to represent a difficult client to limit the problems.
One of the best ways to handle the difficult client is to anticipate the problems and attempt to deal with them at the beginning of the relationship, according to Robert W. Denney, a law-firm management consultant and the president of Wayne-based Robert Denney Associates, Inc. He says, for instance, that a lawyer should ask a client what the client’s deadlines are - and then try to beat them. For example, he says, "If the client says, ‘I want it by Monday,’ lawyers should gear themselves up to get it done by Friday." If a lawyer has an ongoing relationship with a client and the client then sets an impossible deadline, the lawyer’s prior work should help the client understand that the impossible deadline has to move.
Dealing with staffing issues up front can also help avoid the situation of the client trying to dictate which lawyers from a firm should be handling a case or representing the client on a particular transaction. If a client rejects the lawyer’s staffing proposals, the lawyer should ask the client why. The lawyer may be able to cure a misunderstanding and staff the case as proposed. If necessary, the lawyer might be able to tell the client that the client’s view is unfortunate but that there is someone else at the firm who can handle the matter. If that will not work, the lawyer can refer the client to some other law firm. It obviously is better for a lawyer to do this ahead of time, before incurring time and expense, than later. In certain cases, it may be difficult, if not impossible, to resign from representation, at least without court approval.
Addis says lawyers should carefully think about staffing issues for a difficult client. Toward that end, she recommends considering whether to put a male lawyer on a matter for a difficult male client, a female lawyer for a difficult female client or an older lawyer for a difficult younger client. This may be a way to engender trust, she believes.
A discussion of billing at the intake stage can also help avoid bill problems later. At the beginning of the relationship, Denney says, a lawyer should tell the client what the lawyer’s fee, or estimated fee, will be. The lawyer also should explain how often the client will be billed and when the lawyer expects those bills to be paid.
On occasion, however, attorneys moving through a lawsuit or a project will find that they underestimated the legal expenses. Denney suggests that they pick up the phone at that time, discuss it with the client and negotiate if necessary.
Lawyers who represent difficult clients, but who have not discussed their bills in advance, will come to the point - perhaps after the assignment is completed - where they want to submit their bills to their clients. In Denney’s view, a lawyer in this position should call the client, find out whether the client is pleased with the outcome, explain the amount of the bill the lawyer is prepared to send, then ask, "May I send it?" Even in this situation, Denney believes, a lawyer may be able to lead a difficult client to accepting and paying the bill. If the client rejects the lawyer’s entreaties, the lawyer will learn that fact sooner rather than later and should be able to find an amount to bill that is acceptable to both parties.
What if a lawyer takes none of these steps and simply sends a bill, to which the client objects? The lawyer should not fight with the client, but should speak with him or her and offer to look at the bill again. After doing so, the lawyer can contact the client again and say that it looks fine, but ask what the client thinks is right. At that point, the lawyer can negotiate the bill or take other appropriate action.
‘Yes If, No But’
There may also be a better way to tell a difficult client, and other clients, too, that they cannot do something that they want to do. Instead of saying, "No," a lawyer can use what Denney refers to as the "yes if; no but" method.
The lawyer can tell the client that the client can do what he or she wants to do, but only if the client meets certain conditions. These may be, as a practical matter, impossible conditions to meet, but it gives the client a sense that it is not the lawyer who is refusing to permit the client to act. Alternatively, the lawyer can tell the client that the client may not take the actions he or she wants to take, but that there may be alternatives that can get the client to essentially the same position. The lawyer can then explain what those alternatives involve, including the legal issues that need to be examined.
And what should a lawyer do about the client who wants the lawyer to awaken at 3 a.m. to make a conference call? The lawyer should get up and make the call! Lawyers have plenty of time to sleep once they retire.
Lawyers and Clients: In Each Others' Eyes
A man is flying in a hot air balloon and realizes he is lost. He reduces his altitude and spots a man down below. He lowers the balloon further and shouts, "Excuse me, can you help me? I promised my friend I would meet him a half an hour ago, but I don’t know where I am."
The man below says, "Yes, you are in a hot air balloon, hovering approximately 30 feet above this field. You are between 40 and 42 degrees north latitude and between 58 and 60 degrees west longitude."
"You must be a lawyer," the balloonist says.
"I am," replies the man. "How did you know?"
"Well," says the balloonist, "I assume that everything you have told me is technically correct, but I have no idea what to make of your information, and the fact is I still am lost."
The lawyer responds, "You must be a client."
"I am," replies the balloonist, "but how did you know that?"
"Well," replies the lawyer, "you don’t know where you are or where you are going. You have made a promise that you have no idea how to keep and you expect me to solve your problem. The fact is that you are in the exact same position you were in before we met, but now it is somehow my fault."
By Steven A. Meyerowitz of The Pennsylvania Lawyer Magazine