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Bar News - May 5, 2006


Professionalism: How to Protect Yourself from the Abusive Client

By:

There are days like this:

 

The phone rings. It’s a client you met with three days ago. He’s in the process of selling his business, and he’s dealing with a buyer who wants to pay in installments. You explain the risks and lay out a structure that you think will protect him. You explain it. Your client understands it and authorizes you to make that proposal. You do, and it’s well received by the buyer.

           

Now your client has changed his mind. He wants all cash. You remind him that he authorized you to pursue the installment alternative, that you made a commitment on that basis, and that reneging will raise credibility issues with the buyer – a reasonable warning about the likely consequences, because the buyer has already voiced concerns about the accuracy of some company information your client provided.

           

Your client erupts. He demands: “Whose side are you on?” He denies having authorized your proposal, and tells you that you’ve exceeded your instructions. He accuses you of shilling for the buyer because you want to retain the corporate account after the deal closes. He tells you that you’ve jeopardized his deal, and “you’d better get this straightened out in a hurry.” Then he hangs up on you.

           

This is someone who owes you a great deal of money. It’s also not the first time he’s questioned your dedication to his interests because you’ve told him what he doesn’t want to hear, although never quite as violently. The transaction is at a sensitive stage, and you’ve invested a lot of time in understanding the complexity of his business.  Withdrawing now will at the least cost him time and money, as new counsel informs him/herself. What do you do?

           

Good lawyering of course requires more than technical skill or legal knowledge. Virtually every action we take on a client’s behalf reflects judgments we have to make in the circumstances at hand, based on our honest assessment of the facts. Ultimately, our ability to represent our clients effectively rests on their willingness to repose confidence in our advice and in our integrity. Sometimes the confidence is given slowly and reposes uneasily, or requires constant reassurance, but absent that confidence, we can’t function effectively on our client’s behalf. When a client questions both the lawyer’s advice and his/her integrity, the effect is corrosive both on the lawyer and the client.

           

Our Rules of Professional Conduct recognize that Rule 1.13 makes it clear that the lawyer can withdraw if the client pursues an objective that counsel considers “repugnant or imprudent,” or if “other good cause for withdrawal exists.”  This is so even if withdrawal produces a material adverse effect on the client.

           

Take our hypothetical client. He wants to pursue a course of action that is at the least imprudent and contrary to your advice – you have concluded that reneging on the proposal will give the buyer second thoughts about dealing with him. He has accused you of unprofessional conduct. He has lied about what he had authorized you to do only a day or so ago. Given his track record for behavior like this, he’s unlikely to change his ways. He’s made it clear that he has no respect for your judgment, or for you as a professional.

           

And with the inherent uncertainty of outcome in any commercial negotiation, he will find something else to berate you about if you continue to work with him. There’s a high likelihood that continued representation will result either in a malpractice claim or a Professional Conduct Committee complaint.

           

So, your next conversation ought to go something like this: “It won’t be fruitful to pursue this discussion. You’ve forgotten or chosen to ignore the authority you gave me two days ago, and made unwarranted accusations about my motives. I cannot provide effective counsel to you in these circumstances, and I’ve concluded that it is in your interest to retain a new lawyer. I’ll do whatever I reasonably can to support the transition and debrief whomever you choose, but I suggest that you do so quickly.“

           

We work in a highly competitive environment, and clients are hard to come by. But so is professional reputation and self-regard. Your candor and truthfulness lie at the heart of professionalism. If you don’t insist that your clients respect it, you’re sending a powerful message about how little importance you attach to it. And while discharging an abusive client doesn’t help to pay the rent, it does protect professional values that are at least as important in the longer term.

 

Alan L. ReischeAlan L. Reische is with Sheehan Phinney Bass + Green in Manchester.  He is on the Committee on Professionalism and the CLE Committee and has been a member of the NH Bar since 1965.

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