This is the sixth instalment of Arguably the Best, our year-long series on improving your litigation skills.
There is nothing more expensive, time-consuming, and emotionally jarring (to lawyer and to client) than the breakdown of a lawyer-client relationship. All of us have had to deal with these breakdowns at some point in our careers, and most of us would rather never have to deal with them again.
It’s impossible to avoid it completely and there is no silver bullet to protect you from ever having to dump or be dumped by a client. But there are some things that you can do that will dramatically reduce the number of times it happens and the severity of the drama that comes with it.
Relationships with clients, just like other relationships, require time, attention, focus, and investment from both sides. If you choose your clients carefully and take conscious steps throughout the course of the relationship to make sure that the expectations and responsibilities that each of you has to the other are clear and fulfilled and that the lines of communication are wide open, you will find that the relationships that can be strong and productive will be, and the ones that are unhealthy or problematic will be revealed so they can be dealt with.
Here are a few of the things that I do to make sure my client relationships are strong and healthy.
Know my client and myself
I am very careful about who I will hire as a professional adviser in my personal life. I interview real estate agents, doctors, dentists, and just about every other type of professional adviser before agreeing to hire them. I chose the ones I did for a reason and the act of choosing them caused me to invest in the relationship.
Because I want the relationships in my professional life to be as strong and as trusting as the ones in my personal life, I apply the same amount of effort to select clients. That means I interview potential clients before I take them on as well.
I explain to them how difficult litigation can get and that any grain of doubt in their minds as to whether or not the lawyer they have is the best one for them will inevitably sprout and flourish when the going gets tough. They need to trust the lawyer they choose and be confident he or she is philosophically aligned with them, and invested in them and their case. Similarly, I need to trust the client, believe in their position, and have the sense we will approach the litigation strategy for the case the same way.
If we are comfortable with each other and choose to be together, it is more likely that we will continue to make that choice as our relationship advances.
Write it down
I have a comprehensive retainer agreement that I go over in detail with clients before we decide to commit to each other. With it as a guide, we discuss the parameters of the relationship, our expectations of and responsibilities to one another, and what happens if ultimately we don’t see eye to eye and our relationship breaks down.
Some of the consequences of a breakdown of the relationship that we discuss include that they will have to pay me for all the time I spend organizing a file for transfer to another lawyer and any time I have to spend on a motion to get off the record.
I don’t bill clients for the initial interview during which these conversations take place. I consider the time I spend to be an investment that I make to ensure that my business develops in a way that is satisfying to me. Moreover, my experience has shown that spending one or two non-billable hours up front beats spending tens of thousands of dollars worth of writeoffs and non-billable time, after the breakdown of a relationship, to get off the record, clean up the file and sort it out for transfer.
Money: think and talk about it openly and regularly
One of the biggest sources of conflict between lawyers and clients is bills. Lawyers don’t like to talk about them and clients don’t like to pay them. This results in bills getting assessed, or lawyers having to threaten or even take collection action against clients, which is not only unpleasant but also fatal to a healthy lawyer-client relationship.
I do a few things to make sure the lines of communication stay open on bills.
1. I do detailed dockets so the client can see what I have done when they get the bill and so I have a reference with which to refresh my memory if they call to question the bill.
2. I carefully edit bills before I send them and check them for fairness. If I don’t think the value of the work is equal to the amount of the bill I will call the client and discuss it with them before finalizing the account.
3. I bill monthly, regardless of the size of the bill, unless a client asks me not to send accounts that are under a certain threshold. I stay current with the work in progress on the file. If it is accumulating fast, I tell the client and I bill biweekly. Clients hate getting big bills for months’ worth of work on things they have probably forgotten about.
4. I tell clients at the outset that bills are a big issue between lawyers and clients, describe the practices I invoke in order to try to keep communication open on the subject of bills, and ask them to be conscientious about talking to me if they have any questions or concerns about bills.
Breaking up is hard to do
I am almost as fierce about ending client relationships as I am about starting them. When a relationship goes sour it is very difficult to remediate it. I have found that it is generally best for all involved to terminate it if it hasn’t been fixed after one or two open conversations. In my experience, if it can’t be fixed at that point, it will only get worse.
I learned this early, and the hard way. After a couple of excruciating experiences early in my practice, I decided that I would get proactive about managing my client list and give myself permission each Christmas to terminate the three client relationships that appeared to me to be causing me 90 per cent of my stress in return for 10 per cent of my billings, and were at a point where the files could be easily transitioned.
In each case, I explained clearly to the clients why I believed it to be in both of our interests to terminate the relationship, and I referred them to two or three other lawyers I thought would be better suited to them. In many cases, I heard back from them or the lawyers they retained saying the transfer was successful and both lawyers and clients were happy with the new relationship. These clients weren’t a good match for me, but in each case there was another lawyer out there who was suited to them and with whom they went on to have a great relationship.
By the third Christmas, I only had two questionable relationships left, and one of those was patched up in the conversation we had about my intention to terminate the relationship. Since then, my client base has been made up almost completely of clients with whom I have very rewarding, satisfying relationships. One or two have slipped by and had to be dealt with, but they have gone much more smoothly than they would have had I not taken some of these important steps.
Jane Southren is a partner at Lerners LLP in Toronto.
