Legally Scared…Boo.
On this All Hallows Eve, I decided to write about one thing in particular that can scare even the most stoic and unflappable lawyer: The client who is intent on acting AGAINST your advice.
If it hasn’t happened to you yet, get ready because it is going to. Now, when I write this, I am not really writing about those clients that give you a hard time about taking your advice or acting in their own best interests. No. I am talking about those clients that are hell bent on acting exactly contrary to their own interests and your saged legal advice.
Why is this as scary as that certain fictional horror bad guy with the striped shirt and razors for fingers? Because the assumption is that we all worked hard for our licenses and livelihoods and would really like to keep them. Clients that are intent on acting not only against your advice, but absolutely contrary to their own interests spell scary trouble for any learned and cautious attorney. So, I decided to do a cursory research dive on what in the hell can one do when in the middle of a representation, your client tells you that your advice be damned and that they are going to do the exact thing that will put them in a horrible pickle despite what you say. Here are some ideas:
Send the Client a “CYA” Letter
One day in the parking lot of the Costco, I encountered a retired practitioner for whom I had great respect and admiration. This practitioner had just retired and was enlightening me on how much they were enjoying their retirement by delving into private mediation from time to time. As they regaled me with tales and sentiments of their newfound freedom and foray into alternative dispute resolution, they stopped short to give me wonderful advice from what they learned practicing this new found calling. They said to make sure that when a client is hell bent on not following your advice, to their own severe detriment, make sure to document it by sending them a “CYA” letter that explicitly indicates that they are acting against your advice. They also said don’t wait to send such a letter. Do it the minute the client starts balking at your advice and even intimating that they are going to do something in contravention of that advice. They said that when the Bar complaint comes down, as they were sure it would, that such a documented letter would save you a lot of headache and back and forth in dealing with the Bar. I really took this to heart and went straight back to my office to draft a template for one to belt out in a jiffy should I need it. But, shit! This scenario still has me dealing with a Bar complaint which no one wants at their doorstep. Isn’t there a way to get around this???
Have the Client Sign a Waiver
Ah, yes! Of course! A waiver! I am a lawyer, aren’t I? Can’t I just have the client sign something that says that they know exactly what the hell they are doing and that whatever it is they are doing is absolutely against my advice? Oh, and throw in there that they waive any right to pursue a malpractice claim against me when their foolish plan goes to shit like I said it would. That sounds great…right? Well, half right it appears. In my petite research on this, it seems that legal clients cannot waive their right to sue their attorney for malpractice so easily. Really? ABA Model Rule 1.8(h) of the Rules of Professional Conduct say the following:
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
So, a lawyer can ask or request a client make an agreement to prospectively not sue the attorney for malpractice, but that client must get independent counsel to represent them just to consider and agree to such a condition. That is a lot of work to try and coordinate in order to insulate oneself from the foolish decisions of a rogue client. How in practicality can this work? This problem client doesn’t even want to take YOUR advice so how practical is it to get this client to not only get another attorney (and pay for them to boot) to represent them regarding this waiver, but actually take THEIR advice as well? Is it just me, or did the drafters of this rule not fully think it through? This is downright terrifying.
Get the Hell Outta There
Most of what I have seen regarding such a scary and downright spine-tingling situation seem to suggest that the best course of action is to high tail it out of the representation. Run for the hills and don’t look back for fear of turning into a pillar of salt! Great! We all know how to book it from scary situations. But most of the time, a client pulls this kind of shit when you are knee deep into the representation, have made a court appearance, or must appear the next day on the client’s behalf in court. Timing is rarely on our sides when it comes to this, it seems. So, getting out of the representation so elegantly as most of the directives suggest is not all that feasible. It seems to me you are going to have to employ another method in the meantime until you can make that motion to withdraw or referral and send that disengagement letter. Perhaps the ticket is to, at the first whiff of putrid idiocy, just drop the client like Rupert Murdoch dropped Jerry Hall. No second chances. Sounds pretty cold, doesn’t it? I don’t know about you, I would rather feel the chill of my cold shoulder turning away from a suspect client then the downright terrifying feeling of the possibility of a malpractice claim or bar grievance.
The key to all this, it seems, is that these are all solutions to a very scary problem for us practitioners. When we are presented with these types of clients, it can feel like a set up. It is almost like someone is hell bent on creating trouble for someone and…tag…your it. I know we are supposed to be these shark practitioners where nothing scares us or even makes us blink. However, that is just not true, in my opinion. The client who is intent on sabotaging their own life and legal position and acting against your advice is the client that inspires fear in us all, and rightly. Not only fear but severe stress. Even the most careful of client screening practices can land a judicious and cautious attorney in this mess. And that is just not cool under any circumstances. But, prevention is better than cure and if we can set up some protocols and practices, just maybe such petrifying, horrifying and fresh clients can be sent packing faster than you can say…boo.
*Graphic Credit: 3156533 © Robert F. Balazik | Dreamstime.com
