WILMIC News & Risk Management Articles

Can Turning Away Clients Really Be Good Business?

Golden Choice

At a recent CLE program at which I was speaking, the topic of client selection came up. Several younger attorneys in the audience expressed their mixed feelings on the subject. They have bills to pay and are trying to establish their practices, yet they are told to be “choosy” when it comes to picking clients. So which is it, they ask. “Can we really be selective in the cases and clients we choose, sometimes turning away potential business, and still build a successful practice?”

I understand their angst. Practicing law requires many skills, and if you are running your own firm, that certainly includes bringing business in the door. Developing or expanding your practice isn’t easy, especially for solo practitioners competing with larger firms.

The economic rules seem to be changing regularly, as more people come to the legal system pro se, and are less likely to spend money, even when they may need legal help. The percentage of pro se litigants seems to be on the rise. I have heard from several lawyers I have known for many years, very good lawyers, who tell me that part of their practice has “dried up” or at least slowed down considerably.

But taking on every client that walks in the door or calls on the phone or sends an email doesn’t necessarily guarantee “success,” however a lawyer wants to define that term. Given all these pressures to attract new clients, when should meticulous client selection come into play when determining whether to accept a case?

Dabbling

Some lawyers continue to branch out into areas of practice they have never considered before. Caution is advised if you are venturing outside your areas of expertise. Taking almost any case that comes along or practicing in areas of law that are somewhat unfamiliar to you are dangerous business approaches that you ultimately might regret.

Too many lawyers can be tempted to take a case outside their areas of expertise, thinking they need the case for financial reasons or even for survival. Maybe when that person with a real estate dispute came in the door, you saw it as an opportunity to make some money and expand your practice at the same time, even though you never have done any litigation. Bankruptcy is an area that might attract new clients, but are you really suited for that kind of work? Do you know enough about it to serve your clients well? Although it may be tempting to diversify because of the bad economy, “dabbling” in an unfamiliar practice area can bring you more trouble than it’s worth.

Brian Anderson, claims counsel at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), says that you shouldn’t think you can never take on new areas of practice but you should ensure you can devote enough time to learn them. “Using a mentor or consulting with a more experienced attorney in that particular area of the law is a good idea. This may be the opportunity you need to learn and develop new expertise.”

Even for experienced attorneys, the seduction of a big payday can lead to taking a case outside of one’s competence, by virtue of its size, its subject matter, or both. Milwaukee-area attorney Kelly Centofanti says, “I think younger lawyers, or inexperienced ones, or those without enough business, clearly take cases they shouldn’t take. When I was a new lawyer, I wanted to help every client who called, whether their case was viable or not,” she says. “I learned early on, thanks to my mentor, that if we try to help every client and sink our practice, we will never be able to help anyone. Over the years, that advice, coupled with time pressures, has helped me to ‘just say no’ to the iffy cases or the problematic client.”

Anderson says a high number of malpractice claims are directly related to dabbling. According to WILMIC statistics, more than 60 percent of claims involve attorneys who only practice in an area less than 20 percent of the time. Conversely, lawyers who practice almost exclusively in an area of law account for less than 7 percent of claims. Anderson says, “Don’t be afraid to refer a case if you do not have the required expertise. There are times when you simply have to turn away business – times when you just are not the right lawyer to handle a client’s matter.”

Be Selective – Even In Tough Times

Often, cases can turn out well even if you took on a client about whom you initially knew very little. But sometimes, poor client selection can blow up on you. Too often, lawyers take a case before they know all the facts or have elicited as much information from the client as is really needed. Centofanti says jumping in without all the facts is a big mistake and can be costly. “Always do the research first and take the case second.”

Questions to Ask Before Taking
a New Client or Case

  • Are you competent in the practice area?
  • If the practice area is new to you, do you have a mentor to consult?
  • Has the potential client hired and fired another attorney for the same matter?
  • Are the potential client’s expectations reasonable?
  • Do you have sufficient information about the matter?
  • Does the potential client have related legal matters that might complicate the case for which he or she wants to hire you?

Even after you have accepted a case, continue to reevaluate it. Some lawyers develop blinders about their cases. They become advocates in the first meeting with a client and instantly believe in the case without stepping back to review the strengths and weaknesses in a realistic way. Sometimes you’ll discover you don’t have as good a case as you first thought. After your initial meeting with a client, take time to reflect on the case and try to envision how you think the case might develop in the long run.

Beware of the client who wants to negotiate fees because of his or her economic circumstances. There is nothing wrong with coming to a mutually agreeable position with your client on what you will charge for your legal services. And being flexible when it comes to your fee is not a bad thing. Sometimes helping a potential client because you believe in their case and want to see justice served is a good enough reason to take a case. There may even be times pro bono work makes great sense to you as a lawyer. Those are good reasons to adjust your fees.

But wanting to just hang onto a client is not a good reason to lower fees. If the potential client just doesn’t want to pay you what you think the work is worth, the attorney-client relationship may be a bad fit. Accepting only what the potential client is willing to pay could be a sign of other troubles down the road. Anderson says, “Almost ten percent of our current open claims involve fee disputes. And when a lawyer sues for fees, it sometimes results in a counterclaim for malpractice.”

Many lawyers believe the people who can afford lawyers are hiring them – even in today’s economy. Some lawyers I have talked to say what has changed, though, is the number of clients who also are facing other legal problems. They might be contemplating filing for bankruptcy or have upside-down mortgages or are people who anticipated retiring, created a financial plan accordingly, and now face entirely different circumstances than they expected. These are all issues lawyers must consider when taking on a new client, to determine whether they are the right lawyer to handle all of these matters.

Warning Signs

There are some general warning signs that all lawyers should keep in mind.

  • If you are not a potential client’s first lawyer, it may be an indication that the client will never be satisfied no matter which lawyer he or she hires.
  • If the client has unreasonable expectations, there could be trouble ahead. Anderson says every case sounds the best it will ever be when the lawyer and the client first meet. “You only hear the client’s side and what the client wants you to know. Only later, after you take the case and begin investigating the facts, do you learn the downside.”
  • Centofanti also says don’t overpromise. “This can only cause problems down the road. Then, the client’s high expectations will be tough to meet.”
  • If the client doesn’t want to listen, knows everything, or attributes all his or her problems to other people, you are in for a long, difficult case. Those are clients you might be better off declining.

Conclusion

When you think you need to take almost every client who comes in, you should think twice. It might look like a sure payday at the time, but further evaluation could prove otherwise. As Centofanti says, “Resist the feeling that you must get business of any kind. Instead, use that time for family or hobbies. You may not like turning down the business, but you’ll be better off in the long run.”

Many lawyers have told me they learned the hard way. Anderson, who has handled claims for more than 10 years, says WILMIC has had many claims in which the insured lawyer said, “I knew this was not a good client to take on. I wish I had listened to my instincts and just said ‘no.’”

When considering a new case, evaluate the merits of the case; consider whether the potential client has already fired at least one attorney, has realistic expectations, and is willing to listen; and determine whether you have the expertise in that area of the law and are considering taking the case for financial reasons. If any of these considerations raises a red flag, it may not be the case for you.