The ABA Annual meeting is currently underway in San Francisco, California. One of the items on this year's agenda for consideration by the House of Delegates is a resolution to amend to the ABA Model Rules of Professional Conduct, Rule 8.4, Misconduct. The resolution was the work of several entities within the ABA, including the Standing Committee on Ethics and Professional Responsibility, the Diversity and Inclusion 360 Commission and the Commission on Women in the Profession, among others.
The proposed amendment would add subsection (g) to the Rule, making it professional misconduct for a lawyer to:
engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The New York Times carried a story on the proposal yesterday, including comments from those on both sides of the issue, including those who argue that the Rule violates free speech.
Another article this week, at American Thinker, calls the new rule an attempt by the ABA to impose political correctness on all lawyers, although one of the objections in the article - that the rule would prohibit lawyers from choosing whom to represent - seems unfounded given the proposed wording of the most recent revision of the proposed rule, which can be found here.
Another concern might be that lawyers will be forced to take on clients that they cannot afford to represent so as not to be seen to violate the prohibition against discrimination based on socioeconomic status. This concern also seems to be covered by the statement that the ability of a lawyer to accept, decline or withdraw from representation in accordance with Rule 1.16. In addition, proposed Comment [5], which states in part, "A lawyer may charge and collect reasonable fees and expenses for a representation."
In New York (as in several other states), Rule 8.4 already contains a subsection (g) as follows:
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding;
Read the proposed ABA model rule and new comments for yourself and let me know what you think in the comments. Should the bar prohibit lawyers from these kinds of comments and activities, or do they go too far and impose on lawyers' rights of free speech and association?
Last Wednesday, the ABA Journal reported that the New York State Bar Association's House of Delegates would be considering social media ethics guides for lawyers on Saturday during the State Bar's meeting. The story was picked up by several people, including noted blogger and social media expert, Kevin O'Keefe, in his post, "New York Social Media Ethics Guidelines a roadmap or a rabbit hole?" in which O'Keefe questions the necessity for a specific set of guidelines specifically addressing social media and opines that the general rules should suffice to cover these new technologies.
The guidelines being considered appear to be the most recent version of guidelines put together by the New York State Bar Association's Commercial and Federal Litigation Section, but these guidelines are not new (here's a version from 2014). Nor are they particularly surprising. They were developed based on the New York Rules of Professional Conduct and various ethics opinions which have interpreted those rules. While most of the ethics opinions cited in the guidelines are from New York, there are opinions cited from other states where no New York ethics opinions could be found and another jurisdiction's rule was similar.
As O'Keefe says in his post,
Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?
Blogging, social media, social networking and the like are learned through trial and error. A lawyers common sense, good judgment and a working understanding of existing ethics rules guide them.
Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.
Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.
But the fact is that attorneys have been inquiring about the rules that govern social media, as evidenced by opinions such as NYSBA Committee on Professional Ethics Opinion 1009, issued in May of 2014, discussing whether tweets in a specific circumstance require a disclaimer under the New York rules, or Formal Opinion 748 of the New York County Lawyers Association Professional Ethics Committee issued in March of 2015 addressing LinkedIn ethics with respect to skills, endorsements and recommendations.
"Should" lawyers be able to use common sense and apply the existing ethics rules to new technologies like social media the same way they have with previous technologies? Probably. Have most attorneys been able to do so? So far, it seems that way. Will the guidelines scare some attorneys away? Perhaps, but the fact is that the attorneys who are able to use "common sense" to apply the rules to social media, should be able to do the same with regard to the guidelines and still use social media effectively. Indeed, since the guidelines suggest that attorneys should have at least a basic knowledge of social media (since their clients may use it, even if they don't), the guidelines may have the opposite affect - once attorneys learn about these tools, they may be less afraid to use them.
Are specific guidelines necessary? Probably not. Will they be helpful to many attorneys? That remains to be seen; I haven't seen any reports about the action taken by the House of Delegates last weekend, and a link on the Home page of the NYSBA website that purports to lead to a recent report on Social Media Ethics Guidelines appears to lead to an unavailable page. But New York isn't the first or only state to issue similar guidelines about social media use for attorneys - take, for example, Pennsylvania.
In New York, even if adopted, the guidelines would be just that - guidelines - just as the ethics opinions are advisory and only issued based on the specific circumstance in the inquiry presented. Whether an attorney can or will be disciplined as a result of social media use (or misuse) remains to be seen, but the disciplinary authority often relies upon guidelines and ethics opinions such as these, so like it or not, New York attorneys need to take heed.
Despite opposition from many lawyers and bar associations throughout the state, Chief Judge Jonathan Lippman announced today that New York State will begin administering the Uniform Bar Exam (UBE) beginning in July of 2016.
According to this article, Lippman made the announcement at a Law Day celebration in Albany, claiming that the adoption of the UBE will allow New York to remain the gold standard for the profession, and stating that it will allow New York law graduates greater portability and flexibility of their law licenses.
The article goes on to say that Chief Judge Lippman argued that the new examination will "be more comprehensive in testing state-specific knowledge." This is difficult to comprehend, as the existing New York State Bar Examination, written by lawyers in New York State, includes New York State-specific essay questions, as well as New York multiple choice questions. By contrast, the new examination will include only essays testing general legal knowledge (not specific to New York State, nor written by New York laweyrs), but will retain the 50 New York multiple choice questions.
Interestingly, the article also indicates that the new exam "will also include a separate, New York-specific online course, which will include videotaped lectures." This is particularly interesting since New York State currently does not permit continuing legal education credits for young lawyers (those admitted less than two years) to be taken online or by video or audio recordings - all credits must be taken live. Although I haven't seen details of what the new "online course" will entail, it seems odd that this would be an accepted method by which lawyers will now learn New York State-specific law prior to admission to the bar, and that, having taken this online course, lawyers would not be tested on their proficiency in what is taught in those courses.
Additionally, while the claim is that adoption of the UBE will allow for greater "portability" of a New York law license, the fact remains that only 14 other states thus far have adopted the UBE, and none of the largest states are among them. While proponents of the UBE may surmise that other states will follow New York's lead, there is no guarantee that this will occur. Meanwhile, lawyers who wish to enter New York's legal market from foreign jurisdictions will have an easier time competing with New York educated lawyers for desirable New York jobs - arguably with very limited knowledge of the quirks of New York law, including the CPLR.
It is difficult to reconcile the claims that the UBE was instituted in part as a reaction to the fact that "employment prospects are still grim" for recent New York law graduates (a Lippman quote from this New York Times article) with the inevitable fact that adopting the UBE will increase the competition for New York legal jobs. New York educated lawyers who pass the UBE may find it easier to transfer their licenses to states like Alabama, Kansas, Idaho, Utah, North Dakota and Montana (all of whom have adopted the UBE), but with the crippling debt faced by many law graduates today, will the ability to move to these states be a real economic benefit?
And what impact will the lack of New York educated lawyers or lawyers with little knowledge of New York law have on the representation of clients?
March is women's history month and this year's theme is "Weaving the Stories of Women’s Lives." Is disparate treatment in the workplace an element of women lawyers' (and other professionals) stories?
I came across this presentation entitled, "LeanIn Together: 8 Tips for Managers" that describes how men and women are treated differently at work and how managers can address those issues. I've decided to share it in honor of women's history month.
Do you see these kinds of things still happening in your workplace?
Are female lawyers treated differently and do they have more trouble getting promoted than men?
Is the fact that we need a "Women's History Month" at all evidence of disparity?
Do these issues need to be addressed in order to create future women leaders in the legal profession and elsewhere?
I recently heard about a new productivity tool built specifically for solo service providers that I thought might be of interest to solo lawyers, although I haven't tried it myself yet. Built by an international team of designers and developers, 17 hats is a business management app that seeks to streamline business processes for solo business people.
17hats is a cloud-based tool that combines basic CRM (customer relationship management, including contacts), project management, calendaring, quotes, contracts, invoicing, time tracking and bookkeeping all into one integrated program, eliminating the need to subscribe to several software services and purchase different apps and programs.
Some features lawyers might be interested in include:
Workflows lets you automate many repetitive tasks, and to create workflows so you don't skip an essential step in a client's representation. For those who like checklists, these workflows should work well.
Contracts isn't just for contracts, per se - it's a feature that lets you create documents, send them and get them signed digitally. You can create questionnaires to send to clients or potential clients in advance of a meeting or to obtain client feedback after a matter has been completed. Clients fill out the questionnaires directly online. Quotes is what you'd use to send a client an estimate or explanation of your fees. You might use either quotes or contracts for a retainer agreement for example.
Templates helps you to create re-usable templates so you don't need to reinvent the wheel. You can create templates for questionnaires, contracts, quotes, email messages and more.
Incorporated into the invoicing feature is the ability to send online invoices and receive credit card payments. A time-tracking tool will help if you need to bill by the hour or just want to keep track of your time.
There is also an email sync feature, but reviews at this early stage have been lukewarm at best on this particular feature.
17hats is a relatively new program which was launched in October 2014, but the Pasadena, CA based company reportedly received additional seed funding this month from Wavemaker Partners, a company that focuses on technnology based startup companies. This could mean good things for the future of the program.
The company offers a two week free trial, followed by pricing that, if the program delivers the functionality it advertises, is eminently affordable: if you sign on for two years, you pay just $13/month. Shorter terms are available at $29/month for the monthly plan or $17/month for the annual plan.
While not built specifically for lawyers, 17hats does say that lawyers are among the solo business owners it had in mind when creating the program. As with any cloud-based program, you'll want to see what security and confidentiality measures 17hats uses to safeguard data you enter into the program, but for solos who want to stay organized, this may be an interesting option.
If you decide to try out 17hats, let me know what you think!
The Editor's Note from Amy Cosper, Editor in Chief, in the February 2015 issue of Entrepreneur magazine is an excellent read for any entrepreneur, including those intrepid souls who go out on their own to develop their own law practices.
Cosper's column is not only inspirational, but it contains a number of good reminders for those times when everything might not be working exactly the way you'd like it to. The column is entitled "It's OK to be great," and I think it's her message about hard work that may resonate the most.
For example, Cosper says,
You have a hard job. but I promise you, no matter what direction your company does, it will be meaningful, and you will matter. Because what you do, even in failure, matters. Why? Because you have chosen the path less taken, the path less understood and the path most pockmarked with pain. Much of the time that path is a complete slog, and your job, on occasion, is simply to slog it out.
Later, she says,
...the reality is, you are working your ass off to make something, to fight for something and simply to see your vision to the next stage. And it doesn't always work. But that's OK....It's not always rainbows and bunny rabbits. In fact, it rarely is. Being an entrepreneur is more than being the boss. You are the leader - not only the leader of your own destiny, but a leader to the people who believe in you: employees, investors, customers and evangelists.
Fear, although you may feel it, is not an option.
The truth is that going out on your own, whether as a solo or with others to form a new venture is scary, and it's hard work. Sometimes it's easy to lose the vision and to forget why you decided to do this in the first place. Those are the days that you just have to keep going. It's that hard work and perserverence even (and sometimes especially) when facing the nay-sayers, that makes the difference.
It doesn't always work - sometimes you fail. But that's OK, too, because it's all a learning experience. As Dan Lear, director of industry relations for Avvo, mentioned in his article this month in Law Practice Today (quoting one of his mentors),
The best way to figure out what you want is to do something. Whatever it is, just start doing something. You’ll learn more by actually striking out and doing something than you ever will from thinking about doing or even talking to lots of people about doing. Instead, just get started.
Don't let fear stand in your way. The doing makes a difference, whatever the outcome. And, after all, isn't success even sweeter once you've worked for it?
With the Thanksgiving holiday tomorrow in the U.S., thoughts this week naturally turn to giving thanks for all that we have. But this quote from Oprah Winfrey reminds us that giving thanks isn't just important when everything is going great. In fact, it may be even more important when we're having a difficult day, week, month or year.
When you're facing obstacles or tough times, that may be precisely the time to take some time to give thanks for what you do have - remembering that even when the chips are down, you still have much to be thankful for may be just the thing to give you not only perspective, but hope that you'll find a way out of that tough spot.
And who knows - that gratitude may even bring you the spark of an idea about how you can make things better.
The November 2014 issue of Law Practice Today is out, and as always, it is filled with interesting and thought-provoking articles designed to help you improve your marketing and your practice.
Here are five great ideas from this month's issue:
1. Prepare new associates for future success
One of the biggest challenges for small law firms arises when it's time to hire - and train - new associates as the firm grows. Susan Pitchford, a partner in a small intellectual property firm, shares her tips for - as she says, "raising your associate to be a good firm partner" - in Training of New Associates in Small Firms. Her tips include:
Inviting associates to observe everything
Teaching associates how to break bad news to clients
Asking new lawyers to prepare summaries of new opinions and present them to the firm
Setting a good example by continuing your own legal education
Allowing new lawyers to participate (even a little) in court
Discussing the business of the firm with associates
Encouraging new lawyers to join bar and other legal organizations
Take a look at the full article to see all of Pitchford's tips and get her insight on why they are important.
2. Set (and reach) goals
In Becoming a Real Goal-Getter: 5 Tips for Setting and Reaching Goals, Holly Miller demonstrates why it's so important to set goals, and how to do so effectively. Her tips include taking time to take stock of where you are now and your past successes and failures, developing not only the goals themselves, but also a timeline for completing them, and ensuring that your goals are measurable so that you can determine whether or not you've met them. Read the full article to get all of her goal-setting tips.
As we approach the beginning of another new year, planning and goal-setting are activities that should be a priority, to ensure the best 2015 possible. For some of my planning tips, see my Simple Steps column in this month's Law Practice Magazine, entitled, "Simple Steps. Developing Daily and Weekly Plans."
3. Hone your business development and client retention skills
In her article, How to Win and Cultivate New Clients, Sarah Freeman discusses four factors that help to earn the trust of potential clients at an initial consultation:
Knowing yourself
Projecting confidence
Taking time to explain the process
Listening and asking questions
But getting the client to sign on the dotted line is only the beginning of the relationship. As Freeman says, "After we have won a client, we need to cultivate that relationship, keep that client satisfied, and lay the groundwork for future business and referrals. A happy client will talk about us and recommend us when the opportunity arises."
Freeman discusses two ways to cultivate those client relationships: putting good procedures in place to follow up frequently with clients and ensuring that you - as the attorney - communicate regularly with clients, rather than always leaving that job to staff. And don't forget to stay in contact with clients even after the matter has been concluded.
4. Consider video to improve your firm's online presence
Brian Albert writes about how video can help improve both traffic to your website and conversion of website visitors into clients (or at least help to convince them to contact you - after that it's up to you to close the deal). He also shows why posting those same videos to YouTube, on social media sites such as Facebook and Twitter, and in email newsletters can improve your marketing efforts as well. Finally, he presents a list of reasons why video might not be right for your firm. And if you don't feel like reading the article, check out the video at the top, in which Corey Saban discusses reasons you should consider video.
5. Be an active alumnus or alumna
Whether you're a brand-new lawyer or a seasoned practitioner, your alumni network can be a valuable resource for your practice. Tyler Volm's article, Being An Active Alum Can Mean a Better Career, demonstrates many of the benefits of being active in your alumni network. Networking is one obvious benefits, but participation can also provide opportunities for learning new skills - for example, Volm mentions that he learned about time management, fundraising and more as a result of his involvment.
The November issue of Law Practice Today contains even more articles, including those on attornrey coaching programs, support for solo practitioners, how community involvement can co-exsit with small firms, and more. Check out the complete issue here.
Next week I’ll be presenting at the ABA Women Rainmakers Mid-Career Workshop on “Lawyering in the Digital Age.” My presentation covers technology issues that the lawyers of today are faced with that didn’t exist 20, 10, or sometimes even 5 years ago, including issues involving electronic communication, data storage and security, “cloud” services, websites and virtual law offices.
In the past several months, the New York State Bar Association Committee on Professional Ethics has issued a number of ethics opinions that deal with some of these topics.
Here is a quick overview of the New York Opinions.
Remote Access to Law Firm Electronic Files
Perhaps the most comprehensive of the recent New York opinions dealing with the application of the New York ethics rules to modern technology is Opinion 1019, discussing confidentiality and remote access to a law firm’s electronic files. The opinion concludes that, “A law firm may give its lawyers remote access to client files, so that lawyers may work from home, as long as the firm determines that the particular technology used provides reasonable protection to client confidential information, or, in the absence of such reasonable protection, if the law firm obtains informed consent from the client, after informing the client of the risks.”
This reasonableness standard comes from Rule 1.6, Confidentiality. Rule 1.6(c) provides that a lawyer must "exercise reasonable care to prevent . . . others whose services are utilized by the lawyer from disclosing or using confidential information of a client" except as provided in Rule 1.6(b).
Comment 17 to Rule 1.6 provides some additional guidance regarding reasonableness, and notes that “special circumstances might require additional security precautions.” Comment 17 also sets forth factors to be considered in determining reasonableness, including the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.
Opinion 1019 concludes that,
Because of the fact-specific and evolving nature of both technology and cyber risks, we cannot recommend particular steps that would constitute reasonable precautions to prevent confidential information from coming into the hands of unintended recipients, including the degree of password protection to ensure that persons who access the system are authorized, the degree of security of the devices that firm lawyers use to gain access, whether encryption is required, and the security measures the firm must use to determine whether there has been any unauthorized access to client confidential information. However, assuming that the law firm determines that its precautions are reasonable, we believe it may provide such remote access. When the law firm is able to make a determination of reasonableness, we do not believe that client consent is necessary.
However, if a law firm cannot make such a conclusion, the client’s informed consent may be obtained.
Use of Cloud Services for a Transaction
In Opinion 1020, issued September 12, 2014, the Committee addressed a question raised by a real estate attorney who wanted to use an electronic project management tool which would allow sellers’ attorneys, buyers’ attorneys, real estate brokers and mortgage brokers to post and view documents, including contracts and building financials, using a cloud-based data storage tool.
As they did in Opinion 1019, the Committee referred to Rule 1.6(c) and the reasonableness standard, stating that,
Whether a lawyer to a party in a transaction may post and share documents using a “cloud” data storage tool depends on whether the particular technology employed provides reasonable protection to confidential client information and, if not, whether the lawyer obtains informed consent from the client after advising the client of the relevant risks,” and that lawyers must “exercise reasonable care to prevent … [persons] whose services are utilized by the lawyer from disclosing or using confidential information of a client."
Virtual Law Offices
In Opinion 1025, issued September 25, 2014, the Committee opined that a lawyer would be permitted to have an entirely virtual law practice in the State of New York (operating solely online, with no physical location to meet with clients or conduct the practice of law), as long as the attorney complied with the requirements of Judiciary Law §470.
The issue presented was based on Rule 7.1(h) of the Rule of Professional Conduct, which requires that advertisements contain the attorney's principal law office address. An attorney inquired about whether Rule 7.1(h) prohibited the attorney from operating via a purely virtual law office.
Previous NYSBA Opinions concluded that Rule 7.1(h) required all attorneys who advertise to have and disclose a physical office address, however, based in part on court rulings applying Judiciary Law §470, Opinion 1025 comes to a somewhat different conclusion, stating that, “[W]e no longer believe that Rule 7.1(h) -- a rule that on its face regulates only advertising -- provides an independent basis for requiring a physical office.”
The opinion points out that there is potential value to clients of having a lawyer who works solely through a virtual law office, particularly where the client themselves works only virtually, and stating that, "The robustness of electronic communications, and the appointment of a virtual law office service as an agent for accepting service of process, effectively combine to eliminate any concern that a physical office is necessary in all cases for the receipt of service and other communications,” and that, “there is nothing inherently misleading about advertising a virtual law office.”
The opinion cites N.Y. City opinion 2014-2, which deals with a similar issue. It was noted however, that the lack of requirement for a physical law office was not automatic, and would depend heavily on the circumstances.
New York Rule of Professional Conduct 1.1, Competence, requires all attorneys to ensure competence, which Opinion 1025 notes
[N]ot only includes competence in performing the legal work but also competence in handling communications and storing and providing access to client files. An attorney should only use technology that he or she is competent to use. Attorneys owe duties of effective communication with clients to keep them promptly and reasonably informed and consulted about the means of achieving the client's objectives (Rule 1.4). Attorneys owe duties to maintain confidentiality (Rule 1.6), and there are unique concerns about confidentiality that relate to conducting all communications and client file storage electronically. Attorneys have numerous duties relating to the proper preservation of client materials (Rules 1.6(c) and 1.15). Attorneys must assure adequate supervision of subordinate lawyers and of non-lawyers (Rule 5.1 and 5.3). There is no “virtual law office exception” to any of the Rules.
Website Domain Names
As I discussed in this post, in mid-2013, the NYSBA Committee on Professional Ethics issued Opinion 972, in which it noted that attorneys are prohibited from listing their services under the heading “Specialties” on a social media site unless the lawyer is certified in conformity with the provisions of Rule 7.4(c).
On September 12, 2014, the Committee issued Opinion 1021, which addresses the issue of the use of the word “expert” in a law firm’s domain name, citing New York Rule of Professional Conduct 7.5(e)(3), which prohibits firms from using a domain name that implies the ability to obtain results in the matter. The opinion notes that, “The implication of the word [expert] is that the law firm may bring to the matter a seal of approval that provides comparatively greater assurance of some favorable outcome which no disclaimer may readily cure.”
With the rapid pace of technology change in today’s legal environment, all attorneys must remain up to date not only on the changes in technology that affect the delivery of legal services and advertising for those services, but in the ethical rules implicated in the use of such technology.
My last post talked about eliminating bad clients from your practice. But the best way to deal with truly difficult clients is by not taking them on in the first place. That requires that you be able to identify potentially bad clients early – preferably before a retainer is signed.
Create a pre-qualifying process. Think about the bad clients you’ve represented in the past and make a list of the warning signs or red flags that arose during your first conversation or initial consultation. If you can recognize the warning signs in advance, you can stop bad clients before they enter your practice.
To get you started, here are a few bad client warning signs:
Something about the client makes you uncomfortable
Pay attention to what your gut is telling you when you first meet with clients - if your gut tells you the client is not right for you, think twice before agreeing to the representation. I’ve worked with many lawyers who have had a bad feeling about a potential client, but then talked themselves into the representation. If you find yourself making excuses for a client's bad behavior, their inability to listen or follow directions, or other warning signs, STOP!
The client fired their last attorney (or has fired several attorneys)
Although this isn’t always a deal-breaker if the client has just fired one attorney, it does mean you’ll want to do a little digging to find out what the real problem was.
Litigiousness or a history of suing other attorneys
Beware - you could wind up next.
Evasiveness
Trust is an important element of the attorney-client relationship. If the client isn’t forthcoming, it may signal that they don’t trust you. This might be overcome after a little more discussion, but if you don’t feel you can trust the client or don’t think they’re telling you the truth (or the whole story), this might be a client to avoid.
Desire to educate you on the law
While it is good for clients to be engaged and interested in their matter, they need to trust your education, judgment and expertise. A client who tries to educate you on the law is signaling that they don’t trust your expertise. They will likely fight you throughout the engagement and chances are that they will be unhappy no matter the outcome.
Another form of this kind of client is the client who claims their brother in law, their neighbor or their best friend had the same legal issue and it was resolved faster, less expensively or in a different manner than you are advising – even if they were in another state in which the law was different. This second-guessing is another signal of distrust.
Promises of additional work or contacts
Clients who want to negotiate a discount in exchange for additional work from them in the future or for contacts they can introduce you to for additional work may simply be attempting to disguise their unwillingness or inability to pay for your services. Often, this additional work does not appear – or if it does, the contacts they refer also want a discount.
The client downplays their matter
When clients describe their matter with terms like, “I just need a simple…” “I only need you to write a demand letter…” “This should be a quick project…,” those matters are bound to snowball or become more complicated. If you consider taking on this kind of client, be sure that you are exceptionally clear about scope and fee before the retainer agreement is signed to avoid scope creep, and be sure that you would be willing to take on the matter if it were much more complicated than described.
Too much focus on fees
When clients are overly concerned about the fee or they ask about the fee before you even begin to discuss their legal problem, they will continue to be more concerned with your fees and the bill than the quality of the legal work you are providing.
Unrealistic expectations
Clients with unrealistic expectations for outcome, especially if they are on a limited budget or are in a rush, are likely to be unhappy even with stellar legal representation. While it isn’t uncommon for clients to misunderstand the law or to have high expectations, if your initial conversation isn’t successful in managing or tempering those expectations, you’re opening yourself up for problems later by taking on the client.
Rush jobs
When a client comes to you at the last minute or needs something in a rush, that client is signaling to you that they are generally unprepared, demanding, or otherwise difficult. Clients who wait until the last minute to seek a lawyer’s advice will likely be less than responsive to your requests and less than cooperative in providing documents and information you need for their legal matter. If you decide to work with them anyway, consider charging higher fees as a result of the time limitations.
Unreliability
Your client is your partner in the representation and you can’t do the best job for them if they don’t cooperate. Unreliability comes in many forms – not returning calls, failure to keep appointments, arriving late, not bringing documents or information requested, giving retainer checks that bounce. This behavior will only get worse as the representation progresses.
Consider putting a statement in your retainer agreement that the retainer does not go into effect and work will not commence until the client’s check clears. If the check does not clear in a certain amount of time, send a non-representation letter.
Additional Pre-Screening Elements
In addition to your list of warning signs, your pre-qualifying process might include some elements that help you to determine how committed the client is to the process, how much value they place on your services and how willing they are to pay for them. For example, you may want to spend a few minutes on the telephone or require clients to complete an intake form or questionnairebefore they come to your office for an initial consultation. Clients who fail to complete the form may not be serious about their matter or may be uncooperative in the future.
You may also require up-front payment for your initial consultation. This payment can be applied towards the work for any client who ultimately retains you, but it ensures that potential clients understand that there is value in speaking with you, even if they don’t decide to hire you. You can always decide to refuse or refund the payment when you deem it appropriate.
Turning away potentially problematic clients may be the best thing you do for your practice this year.
Are there any warning signs I've missed? Let me know in the comments!
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