James J. Bell: Things to know about time machines, avoiding unworthy clients

There are times in the practice of law when a lawyer wishes he or she had a time machine. Those times can occur when the lawyer realizes that he or she should have never taken the case he or she is working on. The lawyer often re-lives the first phone call with the client and realizes the warning signs were there all along. There was a voice inside the lawyer’s head that was echoing Nancy Regan’s “JUST SAY NO!” But unfortunately, that voice was ignored.

With deadlines mounting it’s really too late to get out of the case without prejudicing the client. But there is always next time. For the next time, here are three things to know about accepting representation and avoiding (and leaving) unworthy clients.

Can you ethically take the case?

Let’s quickly cover some of the basics. Obviously, you can’t say yes to a representation unless you can ethically represent the potential client. That means you can only say yes if you (or someone else in your firm) can do so competently and if your firm does not have a conflict of interest. So obviously, run a conflict check and make sure you’re qualified to take the case.

There are many other items to consider here (including money and relationships inside and outside your firm), but if you are just now learning what I said in the preceding paragraph (and you are not in your first year of law practice), we may need to have coffee.

I have practiced for almost 25 years, and I have only had one partner who has routinely piped up after a conflict check has been published to the firm and said, “I don’t know about this one.” This partner won’t complain about money or a conflict but may simply try to warn you of the potential misery of undertaking a certain representation.

At the time, this person may annoy you. You may be in a dry spell and feel like you “need” this case. Or you may say to yourself, “This is not a conflict. What’s the big deal?” As annoying as this may seem to be at the time, you are lucky to have this partner and I would suggest listening to him or her.

Can you meet client expectations?

You have likely heard that you should be wary of taking a case if you are not the first lawyer in the case. Why is that? It’s because a client who is not satisfied with the first lawyer may not be satisfied with the second, third or even fourth lawyer.

Similarly, the potential client who calls you with a looming deadline may not like what he or she is being told by current counsel about the case’s chances at trial or their chances of succeeding in a motion for summary judgment. All of these are signs that no lawyer can meet this client’s expectations and that you will soon find yourself in the lawyer misery box.

Here are some other red or orange flags you should consider in determining whether you should “Just Say No”:

The potential client promises you “other business down the line.”

The potential client thinks this is the only case you should work on.

The potential client claims to know more law than you (and certainly more than any previous lawyer.)

The potential client has a bad attitude toward the justice system.

The potential client and you are simply incompatible.

And everyone’s favorite: the potential client claims to be motivated only by “revenge,” “making a statement” or “teaching someone a lesson.”

While we are on the topic of “meeting the client’s expectations,” you should consider who the opposing counsel is and the forum the potential client is in. Based on these two factors, an experienced counsel may be able to predict (with some accuracy) the result and the cost of the proceeding. If you are in a position to make a prediction and the potential client does not like what you are predicting, then expectations are unlikely to be met and it may be time to end the initial (and final) phone call.

Getting out of the case

If you are thinking about getting out of a case, this would be a good time to review Rule 1.16 of the Indiana Rules of Professional Conduct and any local rules that may apply. Remember that 1.16(b) states that you may withdraw when withdrawal can be accomplished without material adverse effect on the interests of the client.” In addition, remember that 1.16(c) states that you “must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.”

Drafting a Motion to Withdraw is not the time to get cited for a DWA (Drafting While Angry). Remember your Motion to Withdraw will be a public filing. Make sure you say the minimum needed to accomplish the goal of the motion (getting out of the case) and that you reveal no confidential information in the process.

If the local rules require proof of a letter to the client giving a 10-day notice, the letter should contain no confidential information. If appropriate, you should consider sending two letters: one letter that says how you really feel and one that says the minimum, but notes “for the reasons stated in my previous communication” at the beginning of the letter.

Also, the court can see what you entitled the filed PDF. Make sure that the title of the document is boring and not something that may come back to haunt you like “Peace Out Letter” or “Don’t Let the Door Hit You on the…” letter.

Conclusion

Finding satisfaction in the practice of law can come in many forms, but it sure does brighten the day when regardless of results, a client is grateful for your services. “Just saying no” may be helpful to finding only those appreciative clients and finding more happiness in the practice of law.•

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James J. Bell is a partner at Hoover Hull Turner LLP. Opinions expressed are those of the author.