May 27, 2013
Consider this client screening scenario. A potential client contacts you regarding a legal problem. He or she might meet with you in person or just talk with you by phone. The client tells you a long, somewhat sad story about a genuinely bad thing that happened. Perhaps the client lost her home to a foreclosure, has neck or back pain from a car accident or work injury, is the sole breadwinner in the family and faces removal from the United States, or feels she was discriminated against at work.
You cannot be 100 percent sure but your gut tells you that very little can be done for this person. The person may have been treated unfairly or made some poor decisions but it sounds as though their monetary damages are small, if they exist at all. Still, you do not have all the facts and it is possible that if you investigated, maybe wrote a letter on behalf of the person, you might be able to find additional information that would support a valid legal claim or at least you would be able to tell the person with certainty that they do not have a case. The prospective client is unsophisticated; you are probably much more capable than they are in writing letters and uncovering evidence. Really –you find yourself thinking– the P.C. has been treated so poorly, you would rather not add to their hardship by sending them away.
Stop right there.
One of the worst practices lawyers engage in, and one that leads to disciplinary complaints, is taking cases because the lawyer feels bad for the P.C. and does not want to give a hard message to the P.C. These cases rarely turn into claims worth pursuing. Instead, the lawyer gives the client false hope. The lawyer’s agreement to represent the client gets translated into a potential payoff for the client, who disregards all of the lawyer’s caveats about the merits of the case. The lawyer has postponed the hard, truthful conversation with the client. At the same time, after the lawyer investigates and confirms that, indeed, the client’s claims are worthless, the lawyer puts off the hard conversation with the client. The file sits on a corner of the desk, under a pile of other files. Ultimately, the client complains that the lawyer never works on the client’s case and does not communicate with the client.
In just the past year, I have had half a dozen lawyer-clients who put themselves in just this situation. Each one knew, in their “gut,” at the time the first met with the client, that the case was weak or nonexistent. The lawyers did not want to have the hard conversation with the client and the cases sat. Then the clients, who by and large have paid nothing to the lawyers, filed ethics complaints for neglect and non-communication. Nice, huh?
If you want to be nice, do pro bono work for clients with serious legal issues. Volunteer for a nonprofit. Help old people cross the street. But do not take cases that have no merit and if you do, get out of them quickly.
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