When a client is too much: Dealing with tricky customers
It’s a lawyer’s duty to work for their client, but some clients seem far more trouble than they are worth and end up in the too-hard basket.
You may already be thinking of Mrs B “who always pays four months late”; but challenging clients are not always those unwilling to part with their cash. They can be demanding, difficult, and even angry.
Such clients can be a burden on resources and finances and sap energy levels, even if the numbers of so-called difficult clients are small in comparison to those who are easy to deal with.
Rather than put up with their incessant, and even impossible demands, or lax attitude to paying, there are some simple ways of dealing with such people that means they can, usually, be kept on the books.
The clients who know best
Paul Sills is an Auckland barrister specialising in commercial and civil litigation and an experienced mediator.
He says, in his field, lawyers often come up against clients with unreasonable expectations.
“The bush lawyer is a classic example; somebody who has been in or around the law for several years or they have had a number of disputes so they think they know everything. Or they’ve read the statutes and rather than sit there and tell you the facts, they spend all their time telling you what the legal outcome should be.
“They’ve already looked into a crystal ball and divined what the judge is going to decide so what they’re asking me to do is tick the boxes to get to the inevitable positive outcome for them. Most of the time, of course, they are wildly off the mark because their analysis is subjective and misses a lot of key stuff but their enthusiasm for telling you what the law is unbounded.
“I find it is best to have a direct conversation with them saying that, while I appreciate they have an opinion on the law, that opinion is most likely biased because of their view on the facts, which are also biased, and that the judge is going to be presented with two equally ‘compelling’ views on what occurred so the outcome is not going to be as simple as applying my client’s understanding of the law to his or her understanding of the facts.”
The needy and pushy clients
Mr Sills says some clients expect a lawyer to drop everything for them.
“You get clients who will email and five minutes later, if you haven’t responded, they will call the landline and then try the cellphone, and then start that sequence again,” he says.
“Technology has made demanding clients a whole lot worse, because they can email, call and text you constantly. Now you can get volumes of stuff at 10/11 o’clock at night. And you’re always wary about that because you think how rational – or sober – can someone be at that time of the night.
“It’s made practising in general very exhausting; you just can’t escape from it. It has got to the point where the message on my mobile is to not leave a voicemail but to send a text or email instead. Some still do of course but I don’t listen to the voicemails anymore, otherwise it just becomes uncontrollable.”
Emily Morrow, a former US-based lawyer and now a consultant in Auckland to lawyers and law firms, says one of the biggest issues is clients with unrealistic expectations.
“Some clients expect lawyers to be able to achieve 100% of what they want. From their perspective they pay their lawyers a lot of money so they want value for money, but because they are paying a lot they also want a lot of access to their lawyers.
“They want their lawyers to tell them the truth but also to tell them what they want to hear. They want their lawyers to be technically cutting edge but to speak in a language they understand.
“Those clients are very anxious and they want a lot of hand-holding and attention. The lawyer, therefore, needs, to be able, in a very diplomatic way, to set some appropriate boundaries.
“It could be as granular as saying ‘look, I probably won’t be able to return your phone calls or emails within ten minutes, but I will commit to returning them within four hours, or at the end of the business day’.”
The hopeless case
Paul Sills has had his fair share of clients with cases that are lost causes.
“You can often, as a litigator, get asked to take on hopeless cases for people who are just so caught up in the past that they can’t see the rationality of what they’re asking you to do. Typically they want you to do so on a contingency basis, which is being asked to take an enormous risk based on an often illusory outcome.
“I’ve been in this game long enough to say in response ‘look, I’m not a bank and rather than worry about all the work I would need to do for you and the risk of never being paid, I would rather go home and play with my kids’.”
He says lawyers need to use their instincts more.
“I certainly have fallen foul of being unable to say no when actually your intuition at the outset is saying ‘you don’t want this job’. We try to be all things to all people but there are certainly people you now wish you had said no to.”
The clients who ‘forget’ to pay
Or don’t. While delays are common, sometimes clients refuse point blank to pay what they’re due.
“The classic standoff in litigation is the result comes out and it doesn’t go your way, and then the client doesn’t feel they should pay,” says Paul Sills.
He says terms of engagement are essential so that there’s something to fall back on when issues arise. “But that doesn’t stop there being a fall-out at some time. In litigation that’s often at the end when there’s a big invoice for the trial if it goes that far.”
Mr Sills finds that delayed payment or part-payment is something that is getting worse, and that is partly because of the working ways of big business.
“The whole market outside the law has developed a late-paying attitude. You look at some big retailers on 90-day terms to their suppliers and that’s extended to legal and accounting bills. Late payments have an impact on administration and managing the cash flow.
“At any one time I will have invoices well over six months old.”
Emily Morrow says timing can be crucial.
“The lawyer needs to be very careful about the timing and the content of the bills, so that they get sent out when the client is motivated to pay them; and also that the bills give a sufficient amount of detail, but not too much detail, about what work was done.
“If the lawyer is adept at the timing and the content of the bills, getting those bills paid will be much easier. Many lawyers procrastinate on billing and then they flood-bill at the end of a project; that’s going to make it harder to get paid.”
The lawyer as the problem
Paul Sills says that sometimes the issue lies with the lawyer, through fear.
“We all grow up in this profession fearing having direct conversations with our clients whether it’s about fees, or expectations. Far too often we take on work that we know when we say yes to it, we won’t actually have time for it or we know that it’s going to put us under pressure. And that’s not a good situation for either party.”
Emily Morrow says the issue can arise at the very start of a business relationship.
“Many lawyers also don’t have particularly direct conversations with their clients on what they charge and when they’ll see the bills. The more transparent that is, the better.”
Getting the best out of the client
Brenda Ratcliff, a Wellington-based executive coach whose MindMeld Coaching business works with lawyers, dislikes the term ‘difficult clients’ and says a lot of issues revolve around simple misunderstandings.
“As soon as you start with a label that classifies a client as difficult then actually there’s lots of opportunities to notice them being ‘difficult’. So, instead it would be a good start to put good systems in place to train clients to treat you well.”
She says setting out the basics will go a long way to creating a healthy lawyer-client relationship such as a well-written and clearly explained contract, and explaining the payment system. She also suggests having an upfront conversation about how they can work together.
“Part of the first meeting is going through the basics, pay rates, deposits, how you would like to be paid and what kind of working relationship they can have.”
Ms Ratcliff suggests the firm’s website could be designed to attract the right type of people, “so that potential clients will look at it and ask themselves ‘is this for me?’ and then stating your expertise and what you expect clients to do.”
She suggests young lawyers, who can be vulnerable to opportunistic clients, can adopt a mentor or someone else within the firm who can offer advice and support them. “There’s also useful tools around being able to state your needs assertively, and stating some expectations at the start, for example, call or email me at a particular time on a particular day … so state the behaviour really objectively.”
“And if a client does call or email excessively, state the impact that is having; that it is preventing you from carrying out the work needed to deliver the client the results they want.”
Paul Sills says the best way to manage an anxious client is to try to manage their expectations.
“You’ve got to actually sit them down, and say ‘look, I appreciate the importance of this to you but we need to work in with each other’s expectations and it really works best for me if you can send me an email with your questions and be aware that, as soon I am able to get on to it, I will address it.
“It’s not a case of reading them the riot act, because they are your client and they do have legitimate concerns, and they might be under pressure from the bank, or they can’t tie down a settlement. I try to look at it from their perspective.”
Gasoline on a fire
Jonathan Robinson is an American psychotherapist who has presented at New Zealand Law Society events.
He says, sometimes, our approach to difficult people is the problem.
“The sad truth is that most people’s normal or habitual way of handling difficult people – getting angry at them or staying silent – tends to be like putting gasoline on a fire.
“The first step in dealing with any difficult person is to hear what he or she has to say, and to acknowledge their reality. That does not mean you agree with him or her, it just means you understand their feelings and what they’re trying to say.”
Mr Robinson firstly suggests placating an angry individual – who he calls a “tiger” – by empathising with their situation without agreeing or disagreeing with them.
He says the next step could be asking questions that clarify what a person wants.
“By listening to a tiger and then redirecting his or her anger toward what he or she really wants, you can avoid being the ongoing target of his or her wrath. If what they want is not possible for you to give, you can put the problem back into their lap again by asking what they think you should do next.”
Stick or twist?
So what to do when the person on the other side of the desk becomes too much to handle.
“At some point in time the lawyer has to decide whether to hold or fold; are you going to keep that client or are you going to fire that client?” says Emily Morrow.
“There were a couple of instances when I was practising law where I had been working with a client for a while who had been driving me crazy.
“They had become unmanageable and I had to say ‘look, I think the chemistry between you and me is less than ideal’ and then suggest they work with another good lawyer.”
Ms Morrow says one of her clients, in particular, was being contentious, difficult, constantly questioning her - “just being extremely unpleasant.” She feared that the working relationship would have harmed her reputation if it continued.
What do the Rules say?
The rules around the lawyer-client relationship are covered in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, and in particular, 3.1: “A lawyer must at all times treat a client with respect and courtesy and must not act in a discriminatory manner in contravention of section 21 of the Human Rights Act 1993.
Furthermore, in Rule 3.2: “A lawyer must respond to inquiries from the client in a timely manner”.
Rule 4.2 covers the duty of a lawyer to complete a retainer. In essence, a lawyer is required to complete a retainer unless either the client discharges the lawyer from the retainer or there exists some ‘good cause’ for the lawyer to terminate the retainer (of which the client has received reasonable notice). ‘Good cause’ is not defined under the Rules pursuant to rule 4.2.1, but it is said to include:
- Instructions that require the lawyer to breach any professional obligation.
- The inability or failure of the client to pay a fee on the agreed basis, or, in the absence of an agreed basis, a reasonable fee at the appropriate time.
- The client misleading or deceiving the lawyer in a material respect.
- The client failing to provide instructions to the lawyer in a sufficiently timely way.
- Except in litigation matters, the adoption by the client against the advice of the lawyer of a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations.
Special consideration is given to lawyers acting in litigation under Chapter 13 of the Rules. The Law Society’s National Friends Panel is also a good option for advice on the circumstances in which a lawyer can terminate a retainer.
Last updated on the 4th May 2018