Ethics: Antacid, Anyone?

By: Eric Cooperstein

When a lawyer receives an ethics complaint from a client, often the lawyer is not completely surprised. Not because the lawyer knows they made a mistake—typically the lawyer has provided very good service—but because the client was so difficult to work with that the lawyer already feared that the relationship would not end well. The lawyer remembers having qualms about accepting the representation in the first place and regrets not listening to their “gut.”

Your gut—your client microbiome, if you will—is much more sophisticated than you may give it credit for. It is a complex ecosystem built from myriad experiences over your personal and professional life. Your gut helps you compare the behavior of one client to all the clients you have served before. When the client’s behavior is an outlier, that’s when you are likely to get client indigestion.

Even though each of our client microbiomes are unique, there are certain pathogens that affect even those with the hardiest constitutions. Turning away these clients feels difficult in the moment because lawyers often believe too much in their powers to calm, educate, or reason with a difficult client. In fact, as your gut is trying to tell you, many of these clients’ temperaments  will not change for the better. See whether your gut recognizes these problem clients:

The Caller or The E-mailer:

The client leaves four voicemail messages for you in one day, or calls, emails, and texts you within a few minutes. In one case I recall, a client “text bombed” the lawyer by sending hundreds of repetitive text messages over the course of several hours in the evening. It is axiomatic that many people who contact lawyers are anxious; in some cases, the anxiety may be part of an undiagnosed mental health issue or the result of a failure to take prescribed medications. Some people, however, are so self-absorbed that they wilnever appreciate that they are not your onlyclient. This is where your gut is important: to distinguish between ordinary anxiety levels and complete disrespect.

The Accuser:

In the course of telling you the story of their case, the client says the opposing party is a liar. Then the client says opposing counsel is a liar. The judge that heard the case? Also a liar. You will eventually make the list as well.

The Hard Luck Case:

This person has a very sad story, having honestly suffered an injustice. The lawyer’s initial sense of the case is that there is not likely a legal remedy or that the maximum damages are well below the small claims court limit. But the lawyer thinks that if they wrote a couple of letters or made a few calls, maybe the lawyer could get the client a modicum of relief. Surely, the lawyer thinks, the client would be better off than they would be without the lawyer’s help at all. The lawyer gets sucked into the case, maybe for a reduced fee (but, alas, with no retainer agreement). Then the facts change for the worse, the lawyer feels they cannot withdraw, the client does not pay the small fee, and the client becomes upset that the lawyer has not fixed the problem. The phrase “no good deed goes unpunished” could have been coined by a lawyer who received an ethics complaint from the ungrateful client they tried to help.

The Bully:

Some clients insist on controlling every situation, including your representation. Their techniques may include anger, persistent criticism, and threats. These behaviors are unlikely to change. There may have been a time when lawyers thought that their clients’ threats, even when they implied violence, were just talk. That time is long past. Every threat of harm, to a lawyer, the lawyer’s staff, or to other parties, should be taken seriously and considered grounds for withdrawal. Lawyers should have zero tolerance for such client conduct. Threats to report a lawyer to the Office of Lawyers Professional Responsibility should be met with only one response: it is certainly your right to file a complaint if you believe I have acted unethically. Do not let a client bully you into concessions over your case tactics or your fees.

The Quibbler:

If a lawyer has multiple clients who challenge the lawyer’s invoices, then the problem could be the way the lawyer is charging for their time. But when few clients complain, the one who picks apart every bill is likely the outlier. The client’s critique may say less about the client’s ability or willingness to pay than it does about the client’s lack of trust in the lawyer. A personal conversation with the client may help but if it persists, it is not likely the behavior will change. There is a high risk that those petty grievances will snowball into complaints about all manner of the lawyer’s representation.

There are all kinds of caveats one might apply to these situations. Newer lawyers, for example, with a less-developed client microbiome or in greater need of business (and hence forced to take greater risks) will inevitably agree to represent clients despite initial concerns. Some lawyers have a higher tolerance for bad client behavior. Part of the reason the practice of law is stressful, however, is because lawyers mistakenly believe that suffering their clients’ aberrant personalities is unavoidable. The ethics rules permit lawyers to withdraw when the client renders the representation “unreasonably difficult.” Popping Tums throughout the day is neither part of a balanced diet nor part of a healthy, ethical practice.

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