Practice Pointer: Savor Slow Days

Kryptonite (image by Eric Kirby)

Update (April 18, 2016): Many lawyers do not have as much work as they want, at least from time to time. Some spend their downtime blogging. Others churn files, turn to marketing, or abuse associates. Regardless of whether lawyers find productive ways to manage it, down-time is still very difficult for many lawyers. To some, like me, it is kryptonite, a toxic threat to my otherwise superhuman abilities.

There is often a temptation — sometimes an overwhelming and irresistible temptation — to take on clients, matters, or cases that one would certainly not take on if one were busier. But remember: bad matters are worse than worthless; they can be disastrous, economically, professionally, and otherwise.

It took 8 lawyers from 8 law firms about four months to dispose of Mr. Gene Rechtzigel’s pro se lawsuit against his former lawyer, Erik Gregg Kaardal, and others, a case I discussed below. As of last week, there were 144 docket entries on the court’s electronic docket. That means there were 144 “official interactions,” one might say, by the court and trial counsel in the case over the first four months of 2016. Some docket entries are brief notes that reflect little time or work. Other entries represented significant amounts of work by the lawyers, the litigants, the courts, and the people who support all of the above (motions to dismiss, motions for sanctions, opposition to motion for a temporary restraining order and so on). Practice pointer: Your clients are your co-pilots. Screen them with care or you might pay dearly….

Image by Eric Kirby

Original post (December 28, 2105) (under the headline, “The Privilege of the Attorney-Client Relationship”):

We cannot tell much from reading the recent pro se complaint of Mr. Gene Rechtzigel against the law firm of Mohrman & Kaardal. (Previous posts about Mr. Kaardal are here.) But I think we can infer that Mr. Rechtzigel did not go to law school. And I think we can infer that Mr. Kaardal probably regrets having taken on Mr. Rechtzigel on as a client. Clearly Mr. Rechtzigel deeply regrets having hired Mr. Kaardal as a lawyer.

One of those things they do not (and cannot) teach aspiring lawyers in law school is how to cultivate and manage the unique, sometimes explosive, sometimes corrosive, but very often deeply fulfilling relationship that lawyers have with their clients.

As with dance partners, the relationship is collaborative, interdependent, and nuanced. If the relationship is not firmly built on trust, communication, and confidence and if it does not stay on that foundation, the costs (monetary and non-monetary) to lawyers and their clients can be great.

What can an experienced lawyer tell less experienced lawyers to help them avoid extremely stressful and potentially costly attorney-client derailments? 

Not a lot, really. As with so much of lawyering, the essentials of nurturing positive, healthy, and successful client relationships are easy to pontificate about but difficult to effectively convey..

But I laugh in the face impossibility every day. So here I go:

• Take client intake extremely seriously.
  • If you have the good fortune of working with other lawyers or in an office, consider requiring more than one decision-maker. Often lawyers are so happy to sign on a new client that their judgment suffers. Getting another perspective is important.
    • If you are a solo, that option is not available, of course. But consider “sleeping on it” when you have a new potential case. Take your time.
  • Consider whether you need to run a credit report or undertake other kinds of background checking (speak with a previous lawyer)? The cheapest best first pass: GOOGLE the client.
  • Listen to your gut.
  • Remember: “Starving people eat poison.” I just made that proverb up. The point is that lawyers and law firms tend to make mistakes, to enter into relationships they later greatly regret, when they are desperate for work.
• Trust but verify (attributed to Ronald Reagan, but, actually, a Russian proverb originally)
  • It is critical for lawyers to be able to trust their clients but this need not extend to blind faith.
  • Very often requiring that clients pay a retainer sets up a threshold test of trust. The client must trust the lawyer or law firm to transfer unearned funds to the lawyer. Having gained something in the nature of leverage, the lawyer, in turn, can respond with grounded good faith.
• Clear, consistent, honest two-way communication is critical.
  • If you lie to your client, you have behaved unethically, you have betrayed the client, and you will have earned and deserved the client’s condemnation and wrath.
  • If you catch your client lying to you, fire your client or, at a minimum, call the client out, confront the client, and proceed with great caution.
  • Many lawyers “accidentally” lie to clients by over-stating the validity of a client’s position, by telling the client what the client wants to hear.
    • Landing a client is a bit like making a sale. Sellers tend to over-state the effectiveness of their products and tend to understate the risks or downsides.
    • Fortunately, consumers and clients often can see through puffery. But when lawyers cross the line from self-promotion to deception, the risk of back-fire increases exponentially.
  • Consistent communication is important. It may be true that your assessment of a client’s case is very positive initially and it might change over time. If the change is communicated fully, promptly, and honestly, a client is more likely to “forgive the messenger….”
  • Do not patronize your clients.
    • Some lawyers compensate for their own insecurity by adopting highly authoritative “know-it-all” personae. They can be brusque and dismissive when dealing with client questions or concerns.Believe it or not, your clients might have extremely valuable insights, even as to legal strategy. Listen to them. Even if their perspective is wrong, in your view, it is important to listen wih an open mind and open heart.

• Breaking up is hard (and sometimes important) to do.
  • Every lawyer will have challenges in attorney-client relationships. It is not a “business risk” as much as it is an aspect of doing business, a predictable cost that you will incur.
  • Beware the fallacy of “sunk costs” (“Well, I’ve gone this far. I’ve put this many hours into the case…. I can’t stop now….”). There will come a time when the attorney-client relationship is degraded, unpleasant, and draining but you might feel “locked in.” One hopes you’re not. Sometimes admitting defeat and owning retreat is the best of a number of bad alternatives.