Attorney Hopscotch
This week I would like to explore a particular subject. How to decide to take on (or not to take on) a new client who has had a previous attorney (or…five….)?
All the literature out there that I have seen on the web says that the client who comes to you already having multiple attorneys is a red flag client of which you need to steer clear. But, going back to one of my previous posts, don’t all clients have the right and ability to have competent counsel? Aren’t we as a legal community doing clients a disservice by freezing them out of representation? Aren’t we as a collective legal community supposed to rise to the level of representing the most unfaithful of clients?
I do believe that clients that have a virtual menagerie of attorneys in their past are people whom we need to approach with caution. However, we clearly must delve into why this has been their historical legal context, and if those reasons will be problematic for you representing them. This is an evolving practice for me as I have not settled on a concerted routine as to how to address this issue upon first consulting with a client. So I figured, I would do my “thinking” on this blog. Here are a few things you can check off as you meet a client with a sordid legal past:
1) Require Them to Fill Out a Client Questionnaire—
DON’T SKIP THIS STEP!!!
First, it is important to find out IF the client has had a previous attorney to begin with. You can do this quite handedly with a Client Intake Questionnaire. You can find a template for one at: https://www.legalfuel.com/document-library/ It is really important to not only have a client intake sheet for the client to fill out at the initial consultation or before, but also a short questionnaire about why the client is there to see you and what their expectations are. In this questionnaire you can ask if they have been to see any attorneys prior to you and who they were. This information will shed light on your ultimate decision to take that client on. If a client is coming to you in need of a new attorney because their previous one died, retired or left the practice that means something entirely different than a client who had multiple attorneys because “they just didn’t get me.” Having them commit their answers to paper also helps you have a record of what they said apart from any notes you take.
2) Take Note of Who the Client’s Previous Attorneys Were
This is important. If you practice in the same practice area for a period of time, you tend to get to know the other attorneys with whom you practice often. You have an opinion about your colleagues practice habits and dispositions. If you know that the client has had four previous attorneys, all of whom you have respect for and know their level of reasonableness, then you may decide that the issue really lies with the client and not the attorney.
3) Ask the Client What the Previous Attorney Told Them
I am always interested to hear from the client what exactly their previous attorney felt or thought about their legal position. I think it is important for you to know what those previous attorneys were saying so that if you would give the same advice, then you know that there is not much more you may be able to do for this client. If the client cannot remember or seems evasive about what the previous attorneys told them, that is revelatory as well. Getting a non-responsive answer to this question signifies that the client either didn’t pay attention to these previous advisals or knowingly failed to take or follow these previous attorneys’ advice. Since they were not inclined to take the previous attorneys’ advice what makes you think they will take yours?
4) Ask the Client Why They are Seeking New Counsel
Don’t be shy about this question and don’t fail to ask this question because you think the client won’t tell you the truth. Regardless of what the answer is, you will often times glean a lot from what the client is willing or unwilling to tell you. If they are forthright and honest about the answer, then you can assess whether or not they may have the same issues with you. If they are cagey and non-responsive to this answer, that is an answer in and of itself. That tells you that this client is not willing to be honest with you. If they are not willing to be honest with you from day one, then the representation is headed nowhere but a possible Bar complaint.
5) Request an Increased Deposit / Retainer
If after getting answers to all the above you STILL decide to take on this client that has hopscotched around multiple attorneys’ offices, you may want to request an increased deposit or retainer as a safety net in case you too land on the chopping block. This will make it more likely that if this client plays their commitment-phobic game with you, that at least you reduce your chances of them not paying you for the work you have done. Make this request and be honest with the client about why you are asking for an increased deposit. I know, I know! Why in the heck would you tell them? I think it is important to let them know that what you are seeing are red flags in the representation and that in order for you to feel comfortable working with them with this history, you need a larger cushion of good faith. Of course, there are different ways to say this. I would suggest that you site the complexity of the case as the reason; which it is. Cases almost always that are connected to multiple attorneys inevitably display very complex issues to sort out. In addition, you can also cite that with multiple lawyers working on one case, inevitably you will need to contend with or sort out possibly whatever it was that the previous attorney did. That could mean taking an entirely different approach and unraveling things as a result of that. All of which justifies an increased deposit/retainer. If the client is not willing nor accepting of this, that is your cue that this representation may not be for you either.
For me, I have decided to not just dismiss any potential client that comes to me after already having multiple attorneys. Initially, I thought I should because the risks were just too high that the representation with me would be just as problematic as with those previous attorneys. However, I think it is worth it to really assess why the potential client has this attorney history so you can make a fully informed decision as to why ultimately choose to not work with or work with this potential client. And if you make the decision to NOT work with that client, you can rest assured that you didn’t make that decision lightly or without data or evidence to support your decision. Because we deserve to feel good about our decisions, even the unpopular or non-lucrative ones.
*Image Credit: 25795502 © Serenethos | Dreamstime.com