The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Recognizing Difficult Clients: The Who, The What, The How to Avoid, and The What to Do When You Have One
By Sean McCumber

As much as attorneys enjoy working with clients, clients sometimes exhibit behaviors and take actions that make us think of a movie line from the 1994 movie Clerks – “this job would be great if it wasn’t for the [expletive] customers.”  While clients (usually) pay the bills, the negative actions they undertake can make the attorney’s job more difficult and sometimes place they attorney in the middle of an ethical minefield.   The client may not have expected to be served with a lawsuit.   They may want revenge.   They may want justice.   They may hide from the inevitable.   They may dig in their heels.   Or, if you are lucky, they may be rational, calm, and ready to listen.  Knowing how to deal with the range of clients and behaviors will serve your clients’ interests, protect your practice and reputation, and help you honor your obligations under the Illinois Rules of Professional Conduct (the “Rules”).

The Angry Client

Do not be shocked by the client who is enraged.  There is a panoply of reasons, (which could not exhaustively be listed here) for a client’s anger, including: 1) a cheating business partner, 2) a sneaky spouse in a divorce case, 3) an injury caused by negligence or an intentional act, 4) a contested will, or 5) jealousy or hubris in suing or being sued.  The angry client often lacks control of his or her emotions.  However, keeping a few guidelines in mind will help you to navigate the situation.  First, you are not a therapist.  Define that at the outset of representation.  If the client turns to you with anger issues, such as “Do you know what he just did” or “Do you know what she told the children,” explain to them that you are there to handle their legal matters, and only those.  If you are comfortable, refer them to a trusted mental health colleague who can speak to them about the anger issues.  

Unbridled anger can become misplaced anger, which may be directed toward you, the attorney.  When that happens, it is important to set boundaries.  You are not the client’s punching bag.   You are not obligated to endure abusive language, angry outbursts, or violent acts.  If the client engages in this behavior, diffuse the situation immediately.   Advise the client calmly that such behavior is inappropriate.  End the meeting or telephone call and schedule another appointment or call shortly thereafter (perhaps 24 hours later).  Remind the client that you are working for their interests, but that anger and abuse interfere with your service. 

Set boundaries for your client’s interactions with your staff.   Your staff assists you in your practice and enhances your ability to handle legal matters.  They schedule appointments, prepare pleadings, correspondence and other documents; they prepare exhibits for hearings and trials.  While their assistance is critical, they are NOT attorneys (unless they are your associate attorneys).  If a client behaves inappropriately, follow those same boundaries.   Do not tolerate abusive language or actions by your clients toward your staff.

Physical abuse and verbal abuse should not be allowed.  If that occurs, call the police and protect yourself and your staff.  Do not tolerate abuse from clients.  If your client starts down this abusive path, if possible, help the client extricate themselves from the situation.  A client who is abusive to you or your staff likely behaves that way toward others in his or her life.  The anger you witness may be visited on the opponent, or worse, the children.  Remember that your duty to maintain client confidence is limited by Rule 1.6(b)[1].  If your client intends to kill or seriously harm their spouse or their opponent or other persons, take immediate action.  But take action only to the extent necessary to prevent the client’s intended actions.

With an angry or abusive client, you may need to consider terminating the representation.  For guidance, turn to Rule 1.16, which provides that a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. 

If your client refuses to follow your explicit warnings or requirements as to behaviors and actions, including requests to cease certain conduct or requests that the client undergo counseling, you can withdraw from representation, provided that withdrawal does materially adversely affect the client.  We do not always like our clients, but we have an obligation to represent them fairly and effectively once we agree to do so.  At least, we must do so consistent with our Rules.

The Ostrich Client

In popular culture, an ostrich is known to bury its head in the sand in times of trouble or danger.  The ostrich client is no different.  Sometimes this client comes to the attorney when it is too late.   For example, the petition for dissolution has been filed, notice has been given, and the court date is tomorrow.  The client comes to you expecting a miracle.  Sometimes, the client put the pleading in the drawer, hoping that it would go away (“out of sight out of mind”).  Now, the default order has been entered, or worse, a default judgment has been entered. 

It is critical to manage the client’s expectations immediately.  Advise the client of the risks of the situation and explain that coming to an attorney at the eleventh hour may have been too late.  If you decide to represent the client, explain that communication is a two-way street and that it is crucial to contact you before an issue becomes a serious problem and to respond to your communications in a timely manner.  More importantly, if you decide to represent the client last-minute, you must be prepared for every deadline and follow every time obligation, lest you face the disdain of the Court, the blame of your client, or both.

Some clients are not acting like an ostrich in the beginning, but take on that avoidance behavior along the way.  He or she may start out as a responsive client.   Then, calls go unanswered.   Emails receive no response.  Meetings are canceled at the last minute or ignored.   When that happens, it is important to document everything in your file.  Document every call, noting the time, the date, and the result of the contact (such as “Called client to discuss motion; left voicemail for client to set up appointment; sent follow-up letter requesting client set up appointment to discuss motion.”)   In many instances, once the looming danger has passed, the ostrich may pull his head out of the sand.  If you have not documented everything, that ostrich client may turn on you, blame you for the results, and file an ARDC complaint or malpractice action. 

Always set boundaries with an ostrich client.  At the first sign of ostrich behavior, hold a meeting with the client to warn him or her of the situation and that you expect their cooperation in order to represent them effectively.  If the behavior continues, you should not only consider terminating the representation, but also advise the client that you plan to seek leave to withdraw[2].  Sometimes withdrawal is complicated by the fact that the ostrich client came to you so late that it is impossible to withdraw without adversely affecting the client.  The closer the case is to hearing or trial, the less likely the Court will be to grant you leave to withdraw.  Knowing when to control the ostrich client is as important as knowing when you have to withdraw.  In short, do not let the ostrich behavior bleed over into your actions; do not bury your head in the sand by enabling the client.

The Obsessive/Oppressive Client

Some clients will obsess about your activity.   They will pepper you with questions and documents.   They will tell you that their babysitter’s sister’s cousin’s neighbor had the same situation as they do and they are getting a different result.  They will talk about cases they researched online.  They will ask you why the law is out to screw them.  They will demand an answer to every question.  They will act as if they are your only client and you have no other responsibility in life. 

Here again, setting boundaries is crucial.  Set them immediately.  Even then, the client may still behave in an obsessive or oppressive manner.  Do not allow this client to rule your life.   Before this or any client formally retains you, politely lay out the ground rules for your representation.  Do this before the retainer agreement is even signed.   Have a meeting at the first sign of these behaviors.  Be tactful when you explain that every case is decided on its own facts, and that some friend who received a large jury award in her case may not have the same facts as this client’s case.  Some attorneys give out their personal cell phone numbers.  However, with this type of client that is a recipe for disaster.  Unless you want midnight phone calls about some television law show that your client knows will have the case-winning information for his or her case, do not give them your cell phone number.

Focus on the positive aspects of this kind of client.  They can be helpful.  Put this client to work on his or her case.   Perhaps this case involves an opponent who is embezzling money or involves detailed review of the client’s personal medical or financial records.   Have your client delve into the discovery documents and highlight every expenditure, injury, or action that he or she questions.   Direct them to meticulously outline the facts of the case, as they believe them to be.  Not only does this occupy the client’s time, but it also invests the client in the litigation.  This is not a license to shirk your ethical duties by shifting your responsibilities to the client.  Ultimately, you still have to check the client’s work and fashion the information into a reasonable argument to the Court.  You are the one accountable for how the case is handled.  (If an ARDC complaint were filed against you, you must demonstrate that you were prepared and diligent in your representation.)  Putting the client on the case is an opportunity for them to see that you value their input; they will feel that you are truly working for their interests. 

While these are certainly options for dealing with obsessive or oppressive clients, they do not always work.  Emails or phone calls can become harassing.   The client may show up at the office any time he or she wants and demand an audience with you.  Such situations can become burdensome, awkward and troubling.  They can affect your representation not only of this client, but also of other clients[3].   You must put your client on notice that constant obsessive interruptions are unacceptable.  If the behavior continues, you should not only consider terminating the representation, but also advise the client that you plan to seek leave to withdraw.[4]

The Mentally Ill Client

Dealing with a mentally ill client is a difficult situation for attorneys.  We are not mental health professionals.  The client may be depressed for reasons related to your representation, or for other reasons.  The client might suffer from a personality disorder (borderline personality, antisocial personality, narcissistic personality, histrionic personality, and so on).  The client might have dementia or a chemical imbalance. The client might have anger management or stress disorders that impair his or her ability for rational thought and meaningful participation in his or her litigation.

Mental illness or impairment (“diminished capacity”) does not immediately absolve you of your attorney-client obligations[5].  You must determine whether you reasonably believe that the diminished capacity places the client at risk of physical, financial, or other harm unless action is taken.[6]  If you cannot act in the client’s interest, then you may take reasonably necessary protective action, such as contacting persons or entities who can take action, or seeking the appointment of a person or entity who can take action[7].  In so doing, you can disclose information, otherwise protected by Rule 1.6, but only to the extent reasonably necessary to protect the client’s interests.[8]

You may need to consult with the client’s family members.  This is permissible. Talking to family members should only occur after meeting with the client individually to discuss your concerns.  Explain your concerns to the client and suggest a meeting with a trusted family member.  If the client agrees, set up a personal meeting with the client and the family member.  Be open and honest, but limit the discussion to information about the possible impairment of the client.  If your client does not agree, you might consider terminating the relationship[9].  If you do move with withdraw, be prepared to advise the Court of your concerns, and consider the possibly of asking the Court to appoint a legal representative to protect your client.

As with every other type of difficult client, document everything in writing.  An impaired client may believe you are the cause of his or her problem, or the client’s capacity is so diminished that any action you take appears to be a threat or negative action against him or her.  

The Uncooperative/Unwilling Client

Few things for attorneys can be more frustrating than having a client who seeks your advice, and then ignores it completely after you give it.  He or she acts irrationally or contrary to your advice.  Maybe the client simply does not listen.  Then, when the thing you told them would happen does, he or she blames you.  Maybe you advised your client not to have contact with a particular witness or victim in the case.   Maybe you requested your client provide you with all corporate records in order craft a proper and complete response to the opponent’s discovery requests.  Maybe you told your client not to text with his or her spouse.  Perhaps you advised your client that texting the children 15 times a day might be construed as harassing and a violation of an Order of Protection.  The uncooperative client either fails to hear the advice or fails to heed it. 

When your client refuses to cooperate, of course, it makes your job much more difficult.  This is particularly problematic in the realm of telecommunications.  People share information through social media without considering future implications. As a diligent attorney, you should advise your client to stop posting information and photos to social media sites.  A good mantra is “facebook is forever.”  Someone’s facebook page can provide a wealth of information to your opponent and may give rise to discovery complications (subpoenas, motions, etc.).

If you believe a client is ignoring your legal advice, set up a personal meeting with the client to discuss his or her unwillingness to follow your advice.  Remind the client that you can only representing them effectively if they follow your advice.  If your client does not agree, you might consider terminating the relationship[10].

The Illegal Behavior Client

Some clients view litigation as a win-lose scenario, and they want to win at any cost.  Sometimes, they might engage in illegal behavior because they think it will help your representation, or because they want to fight fire with fire.  This is a dangerous situation.  You must ensure that you do not go down the path of illegal/unethical conduct with your client.  To do so invites the ARDC to investigate your role and your behavior, possibly resulting in sanctions up to and including, disbarment.  Is your law license worth this client?

Litigation can be contentious, especially family law litigation.  Desperation brings forth extreme behavior in some people.  Sometimes, litigants engage in illegal activity without meaning to.  For example, to a lay person, it may seem innocuous to record a conversation surreptitiously; but this is illegal[11].  With modern technology and smartphones it is very easy to record someone.  Maybe the child’s conversation with dad is recorded for use later.   Maybe the corporate embezzlement is discussed by phone and one party records the conversation.

It is a particularly difficult situation for attorneys when one of their clients expresses an intention to commit a crime or perpetrate a fraud, especially on the Court.  When in doubt, the Rules provide the answer[12].  Eavesdropping is a crime.  You should unequivocally refuse to receive any evidence obtained through illegal means (unless you have reason to believe there is an exemption under the statute and you have researched the issue at least two times, if not more, and even then, you should still be more than cautious).  What about the client has failed to file income tax returns, or fraudulently filed income tax returns, or is using a family corporation to hide assets (calling them corporate buy-ins, loans, etc.)?   More seriously, what about the client who advises you that he or she intends to harm (or kill) another?  What if your client tells you that he intends to lie in Court (or you are reasonably certain that the information provided by your client is a lie and you reasonably believe that your client intends to commit perjury or submit forged documents).  You have a duty to maintain the confidences of your client, but subornation of perjury is a crime; it involves procuring another person to commit any perjury, or allowing another person to commit any perjury, before a court, agency, or tribunal[13].

Rule 1.6 requires you to maintain client confidences.   However, that Rule is not absolute – Rule 1.6(b) authorizes a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.  Not only are you authorized to reveal the information, but also, you are required to reveal, if necessary the information to the tribunal in an adjudicative proceeding, if the information involves the client engaging in criminal or fraudulent conduct relating to the proceeding[14].  

If you have reason to believe the client is committing a criminal act or engaging in fraudulent conduct relating to the proceedings, you should meet with the client immediately to discuss these actions and the consequences thereto.  You should also advise your client that you have an ethical obligation to refuse to offer evidence that you know is false[15].  Further, if you determine that you cannot represent the client due to the criminal or fraudulent activity, advise the client immediately and file the appropriate motion to withdraw from representation[16].  You simply cannot be a party to the presentation of false evidence.  Your license is your livelihood. 

Conclusion

While the foregoing presented a few scenarios, client issues can and do arise regularly in the practice of law.  There is no perfect client – one who follows your advice, acts appropriately, and pays your bill in the timely manner.  However, you can manage the representation in a manner which minimizes the difficult behavior, or withdraw from representation before the difficult client becomes a malpractice opponent or a complainant to the ARDC.  Navigating the client relationship and avoiding the minefields can keep your practice intact, along with your reputation and sanity.

[1] A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.

[2] Rule 1.16(b)(5) - client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; Rule 1.16(b)(7) - other good cause for withdrawal exists.

[3] See Rule 1.7(b) – the question is whether the oppressive or obsessive client’s actions create the conflict of interest to the attorney’s other clients.  

[4] Rule 1.16(b)(5) - client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; Rule 1.16(b)(7) - other good cause for withdrawal exists.

[5] Rule 1.14(a).

[6] Rule 1.14(b).

[7] Id.

[8] Rule 1.14(c).

[9] See Rule 1.16(b)(5).

[10] Id.

[11] See 720 ILCS 5/14-1, et seq. (West 2012).

[12] See Rule 1.2(d) - A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

[13] 720 ILCS 5/32-3 (West 2012); see also Rule 3.3(a)(4).

[14] Rule 3.3(b).

[15] Rule 3.3(a)(1) and (4); Rule 3.3(c).

[16] Rule 1.16(b)(2), (3), and (4).

Sean McCumber is a partner at Sullivan Taylor & Gumina, P.C. in Wheaton, Illinois. He received his J.D. from The University of Illinois College of Law, and as a result is an avid Illini fan.   He concentrates his practice in family law, adoptions, and juvenile law. He is the Chair of the DCBA Professional Responsibility Committee and is a Fellow in the American Academy of Adoption Attorneys.

 
 
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