As I sit at home working in relative isolation wondering when the second COVID-19 wave will crest (or is it part two of the first wave?), I have some additional time to ponder some of the whys of the claims currently on report. You have no doubt read many articles — some here I hope — that address deadlines, documentation, conflicts, dabbling, and the various other potential pitfalls that can lead to a claim. Those articles provide some procedures to implement to avoid tripping on hard lines. All very important as it is often in the mundane details where the devil is to be found. However, I hope you will indulge me if I take this chance to go more abstract.
At its heart, an attorney-client relationship is just that: a relationship, no different from any other. Like all relationships, it needs to be evaluated continuously as to whether it is a good relationship. Our colleagues in the domestic-relations world can give us countless stories of toxic relationships that lingered far too long for a host of reasons, be it the interests of the kids, the house, social standing, or simple economics as splitting up is too expensive. Often, they will tell you what they tell their clients, which is that the toll of staying is worse than the price they feared for finally ending things. This perspective is easier to see rationally and objectively from the outside.
Lawyers take on clients and form attorney-client relationships for many reasons. Ideally, a case is undertaken because it is squarely in an attorney’s professional wheelhouse, though a lawyer can be motived by the righteousness of the clients’ cause, sympathy for a person whose case no one else would take, a need to pay the bills, or the prospects of a giant pay off. When commencing a representation, lawyers evaluate the wisdom and propriety of undertaking the representation. They run a conflict check of the known players to assure that representation does not have an ethical impediment. They discuss billing rates, retainers, goals, and expectations with the prospective client. It is then that a lawyer will have the antenna out for red flags and other warning signs. Once the engagement letter is signed many lawyers turn to the task at hand and fail to monitor the relationship.
There can be any number of warning signs to watch for that may indicate corrective action or extraction. Have the client’s expectations changed or grown over the course of representation? Has the version of the world presented by your client not meshed with the discovery obtained? Has the client not responded to requests for information sought in discovery or otherwise gone dark? Has the client failed to replenish a retainer or otherwise fallen behind on payment?
Unreasonable expectations have a high correlation to malpractice suits. Client expectations are subject to creep, perhaps from growing emotional investment or a desire for a good return on the monetary investment or reasons peculiar to an individual. It is important to make sure you and the client remain on the same page. If the facts evolve in a way that was not anticipated, it is important to revisit the possible outcomes and expectations. If the client has potentially misled you, it may be time to consider ending the representation. Someone who misrepresents facts in one case seems a likely candidate to misrepresent facts in a case against their attorney. If the client has stopped participating, it is wise to get out before facing a statute of limitations or discovery deadline. I have seen attorneys unable to contact an out-of-touch client to file a suit to preserve a cause of action then be stuck with a pending suit and no client to consult. Finally, stay on top of billing in non-contingent cases. It is not uncommon for a lawyer to throw good unpaid time after bad when getting out would unduly prejudice the client. At best you are doing unintended pro bono work, at worst you are doing resentful charity that may result in ill will and hard feelings and finger pointing in the event of a less than favorable result.