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The Importance of Abstaining from Representation

when to say no

As young attorneys, whether solo or in a smaller firm, we are inherently hungry for new business. Driven attorneys remain hungry, regardless of how long they have been practicing.

However, in our unending quest to obtain new clients, it is important to note that we cannot – and should not – take every case that walks in through our office doors. It is simply not possible.

And if you are taking every case that comes in, you’re not lawyering correctly. Sometimes it is in your best interests to just say “no”.

There are many threats to a case, but none are as potentially devastating as the clients themselves.

All too easily, a client may sabotage their own case any number of ways before they’ve even retained you; or worse, after they have signed your employment agreement, and against your most specific instructions.

To this end, it is important to remain cautious when signing up new clients and allow yourself time to perform brief research on the case, as well as the client, between intake and sign-up.

I prefer to meet with the client for a live intake, take a day to research both the client and the case, and then e-mail my employment agreement and letter of representation for the client’s execution.

A common colloquialism that I am certain we are all familiar with is that “hindsight is 20/20.”

This saying essentially means that it is easy to know the right thing to do after something has happened, but it’s hard to predict the future.

Perfect hindsight is knowing when to refuse to act as counsel, and when to accept a case.

For those days when our vision is not perfect, withdrawal may be the most prudent course of action. In this article, I will elaborate on both.

 

  1. Refusing to act as Counsel

Knowing when to decline a case is, and always has been, a learned skill. It will inevitably come with time and experience.

But the first step in learning and mastering this skill is the practice of cautious objectivity.

Evaluation of the viability of a case should be an objective process taking into account multiple factors.

One of the prime factors is an analysis of actionable facts, correlating directly with the law, that may allow for recoverable damages found in a court of competent jurisdiction.

Other major factors include the statute of limitations, or a possible binding arbitration clause precluding litigation.

It is also vital to vet your clients prior to signing them up. This can be done any number of ways, whether checking with the District Clerk, Probate Court, County Clerk, Criminal Justice System, or Property Appraisal District.

As their attorney, you should know your client’s place of residence, criminal history, etc. You do not want to learn compromising details about your client from opposing counsel – especially while in litigation.

Checking their social media should be second nature. And, of course, always check for possible conflicts of interest.

 

What law school typically does not teach is how to give a brutally honest assessment of the case to the client.

This is especially poignant if, in your belief, there is no case.

Telling someone their damages have no avenue for remedy is not usually on the list of things that inspired us to become lawyers, but it may be required.

Finally, it is essential that you know when the potential client does not need you as counsel, but needs another attorney.

Knowing when to send a client to someone more experienced, or whose practice focuses on a client’s concern outside of your wheelhouse, is just as important.

This triple edged sword will save you headache and heartache, grease the wheels of networking, and address the client’s concerns simultaneously.

However, if you have already executed a contract of employment with the client, then one of the only avenues left may be to withdraw as their attorney.

 

  1. Withdrawal as Counsel

In prior articles, I have elaborated on the necessity of a Social Media blackout provision within your power of attorney.

Few paragraphs have proven to be more useful than this provision – but one of those superlative provisions should be your terms for Withdrawal.

This paragraph is the ripcord to your parachute of last resort, and as such should contain extensive language regarding the many terms and conditions of your withdrawal as counsel.

Reasons for legitimate withdrawal are myriad in nature; from unsupportable legal arguments and false factual scenarios, to simple conflict of personalities.

Whatever the reason, withdrawal must be quickly and effectively communicated to all parties – especially once litigation has commenced.

Any communication to a third party regarding your withdrawal, must reflect that your withdrawal should not be construed as being prejudicial to your former client’s legal interests.

It may not be possible to fully stress the importance of maintaining control over both the case and the client, but once an attorney loses control over one or both of these, the case may quickly spiral out of hand.

The most certain way to maintain control of both the case and the client is to be aggressive and proactive in your communication with the client.

Constant status updates and reminders of the possible courses of action let them know you are in control and on the ball. (And I highly recommend these frequent communiques be made by phone, not e-mail.)

Maintaining that control garners the client’s confidence in your abilities to lawyer, and lessens their desire to find their own answers through Google.

And you will run into clients who believe Google and law degrees are interchangeable.

Finally, upon successful withdrawal from any case, it is important that you return the entire file to the client, as they will likely need this moving forward with their case – especially if litigation is on the horizon or has already initiated.

Until new counsel is appointed, your duty to act in the absolute best interests of the client remains steadfast, regardless of the current nature of the attorney/client relationship.

However, it is critical that you retain a ‘skeleton’ copy of the case file for your own records as well.

At any point in the future, an issue may arise that requires you to accurately produce any and all materials regarding that case.

As an attorney, keeping stringent records should be instinctual – trust that instinct to the Nth degree.

And as a solo attorney or small firm, while it is important to keep new clients walking in, it is equally important to acknowledge your limits and learn when to say “no thank you”.

 

In closing, it is essential that young attorneys avoid what is commonly known as ‘hero syndrome’. It is easy for an attorney’s ego to run away with their imagination, planting the idea that they can handle everyone’s problems successfully one hundred percent of the time. Only with time will you be able to (1) identify potential problem clients, (2) learn how to corral and control the case and the client, and (3) learn how to instantly assess the viability of your potential new client’s claims and give them an honest analysis.

While you may believe the client has no recourse for their concerns, remind them that this is your assessment, and that another attorney may have a differing opinion.

Lastly – whether stemming from abstention or withdrawal – always advise the client, in writing, to seek other legal representation immediately, as time is of the essence more often than not.

About the author

    Julian Frachtman

    The Frachtman Law [email protected]