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Section Review

Spotting the “Client to Avoid”

Dan Dalton, an attorney with offices in Lowell and North Andover, practices family law, divorce and divorce mediation.
Greed and fear. They maintain a symbiotic relationship, sort of a dark-side yin and yang. Try as we will to quell these two bogeymen, they often surface to spook us when we’re most vulnerable — deciding whether to accept a potential client.

Greed has few fans. It even merits a place on the list of seven deadly sins, known by the slightly less distasteful name “avarice.” Chinese philosopher Lao Tzu even declared it the worst of human foibles: “There is no greater disaster than greed.”

Like greed, fear can spawn disaster. But fear can be pardoned. It’s human. When consulting with a potential client, we have nothing to fear but fear itself (I stole that last part). What is it we fear? We fear a real or perceived trough of the revenue wave. We fear the appearance of incompetence. We fear — irrationally, against all evidence to the contrary — that no one will ever seek our counsel again. So we accept CTAs: “Clients to Avoid.”

Who are these CTAs? Not as obvious as the four horsemen with their famine, pestilence, destruction, and death, they will, nonetheless, give you a terrific headache, and that’s reason enough to avoid them.

The nomadic CTA. This CTA has had another attorney, perhaps several, who “just didn’t do enough for me.” When pressed for specifics, however, he’s at a loss. When asked permission to speak with his former counsel, he grows suspicious. Do not let your ego (recklessness?) allow you to think you can satisfy him. You have met a CTA. Develop a strict policy: Never represent anyone who will not let you speak with previous counsel; never represent anyone who already has had two attorneys whom the CTA has found deficient.

The mistrustful CTA. Dubious, argumentative and querulous, she questions your knowledge, your experience and your proposed plan of action. She rebuts your statements with gospel from her hairdresser’s sister’s friend. Do not trust someone who does not trust you. (Confession: I once had a client who always arrived at my office with Divorce for Dummies tucked under her arm. That yellow book bespoke volumes. It took me weeks to convince her that alimony and spousal support were one and the same. Her parting note, laced with scathing criticism, remains stapled to the unpaid invoice.)

The fee-obsessed CTA. With this CTA, it’s not so much the discussion of fees as the discussion’s timing. Upon hearing your consultation fee, he balks. “Many lawyers don’t charge for the consultation,” he says. “And I can never understand why,” you answer. Fortunately, that should end it. If you do meet, your fee is foremost in his mind. He presses for immediate answers. What will the final bill be? Do you bill for telephone calls? Why do you need such a large retainer? Effort and outcome will mean little to this CTA.

You’re likely thinking that you both benefit from an open discussion of fees. That’s true. But discuss the topic toward the end of the consultation. If the would-be client puts primary emphasis on the dollar, you both will end up unhappy.

The innominate rule. You’re familiar with the “innominate” exception to the hearsay rule, right? (Innominate: 1. having no name; 2. anonymous.) It goes something like this: Hearsay may be admissible, even if it doesn’t fit into one of the many classic exceptions, if it’s sufficiently reliable.

You should have your own innominate rule for client selection. Unlike the rules of evidence, you don’t have to fathom, say, the difference between an admission and a declaration against interest, or when exactly a treatise is “learned.” You just have to trust yourself.

If the potential client you meet one day has known of the coming court date on the following day, why did she wait? Does she expect you to drop everything? If so, you may just want to decline.

If the fellow who “doesn’t care what it costs, it’s the principle” has a conniption when you explain it’s impossible to handle his case on a contingency fee, you may just want to decline.

If your past has left you with an intolerably painful association with anyone named Cindy and you just can’t get past it, you may just want to decline Cindy’s case.

Remember, you’re required, not just allowed, to decline representation if anything prevents you from representing a client zealously. A lack of experience, a lack of time, a lack of interest, “Cindy” — any reason that prevents you from doing your job — means you should thank the would-be client, then politely usher her from your office.

We earn a better living by the clients we decline rather than the ones we accept. Fear not.

©2014 Massachusetts Bar Association