At the Indiana State Bar Association’s Fourth Conclave on Legal Education held at the I.U. Indianapolis Law School on September 24 and 25, 2010, I had the pleasure of moderating a break-out group entitled “Resiliency in the Face of Stress: The Law School and Law Practice Experience.” The leader of the session was G. Andrew Benjamin, J.D, Ph.D. Andy is an interesting guy who is both a lawyer and clinical psychologist and is a professor in both the School of Law and the Department of Psychology at the University of Washington. As practicing lawyers, we probably don’t need some smarty pants academic telling us how stressful the practice is. But Andy is no ivory-tower egghead—he is firmly grounded in the realities of the law practice experience.
During his presentation, he shared an interesting insight into what is required for law practice to be personally fulfilling. He calls it the “Rule of Two.” The Rule of Two means that every legal representation (okay, maybe not every, but definitely most) should be marked by at least two of three elements. Those three elements are: (1) The client and lawyer should be able to work well together. There should be interpersonal compatibility. (2) The legal matter should involve work the lawyer finds professionally interesting or challenging. (3) The lawyer should be confident that he or she will be fairly compensated for the representation—unless, of course, the lawyer had consciously decided otherwise. Pro bono work is the main exception. As Andy told it, if your cases don’t meet the Rule of Two, your work for that client will be unfulfilling. Put enough of those kinds of cases together in one law practice and you will find a miserable lawyer. If most of your clients and cases are three-fers, you’re in lawyer heaven. But two out of three ain’t bad.
It is pretty obvious that lawyers who dislike their clients, their clients’ cases or the fairness of their compensation for doing the work are at risk of falling short of some of the most fundamental aspects of maintaining a good lawyer-client relationship. For example, displaying diligence to their client’s matters (Rule of Professional Conduct 1.3), communicating appropriately with their clients (Rule 1.4), or even displaying the thoroughness and preparation needed to be a competent lawyer (Rule 1.1).
How do we avoid being saddled with a case load that makes us miserable lawyers and probably miserable people? Note that the three elements primarily turn on the client selection decision. An imprudent decision to accept a client (and the legal matter that goes with him or her) will either put you in a dysfunctional relationship with the client, result in a crummy case being hung around your neck like an albatross, or destine you to a form of legalized slavery.
Let’s look at some factors that are well within our capacity to avoid as we decide whether to accept clients generally or their legal matters in particular. Remember, once you’ve said yes to a client, it is decidedly harder to unwind that relationship than if you had turned it down in the first place. In the latter regard, consult Rule 1.16 for terminating an attorney-client relationship.
Keep in mind that there is no affirmative ethical obligation to accept a client just because the client wants to hire you. We have tremendous freedom in our law practice culture to control who we represent. I would be remiss, however, in not mentioning the importance of providing pro bono assistance to clients who would otherwise be without counsel. See generally Rule 6.1. Lest you think pro bono works means foregoing compensation, think again. Your view of compensation is too narrow. Don’t underestimate the psychic income to be derived from using your skills as a lawyer to make someone’s life better.
Each time a new client seeks representation or an existing or former client presents you with a new matter, consider the following:
- Competence. Assess your competence in light of the new matter presented. Ethically, you need to either have the knowledge and skills to handle the representation or be able to readily get up to speed. But more than that, you need to seriously consider your level of stress operating outside your comfort zone. On the other hand, if we don’t push our boundaries, we don’t grow as lawyers. It’s a balancing act with no right or wrong answer. My point is merely to be thoughtful about it.
- The Old Switcheroo. What is the prospective client’s experience with past lawyers? Why did they come to you? If you are the second or third lawyer in the matter or if the client did not tender the new matter to his or her previous lawyer, try to figure out why. Frequent or unexplained lawyer changes are good signals that the client is difficult, the case is a dog or the client doesn’t willingly pay for services—all bad omens.
- No Cure-All. Figure out why the client is seeking legal representation. Is he trying to force a human relationship problem into a legal mold that wasn’t designed to accommodate it? Does the client have enough emotional distance from the problem to be able to engage in rational thought about the possibilities for and limits of a legal solution to the problem? The law is a pretty blunt instrument and if the client thinks of it as a cure-all, he will likely be disappointed with any outcome the law can provide (and with you).
- Missing In Action. Does the client want to dump the problem in your lap and walk away? Any legal representation is a partnership. It is not like having your house painted while you are away on vacation. Client involvement in case decision-making is important not only because it is ethically required (Rule 1.2(a)), but also because the less engagement the client has with the matter, the easier it is for the client to blame the lawyer when things don’t go well.
- The Micromanager. If the client views you as a mere tool for executing the client’s detailed instructions, you may find yourself in constant tension with client demands that you believe are wrong-headed. The value lawyers bring to their client matters is knowledge of the law and legal process. Why not represent clients who trust you do your job?
- The Needy Client. It is nice to feel wanted, but not too much. One of the great challenges of practicing law is attending to multiple client demands at the same time. When one client unnecessarily dominates a lawyer’s time, other clients inevitably feel the effects. It is also often the case that the needy client is insensitive to the opportunity costs imposed on the lawyer for having to focus excessively on that client. As a consequence, the needy client is often unwilling to fairly compensate the lawyer for the time devoted to addressing that client’s perceived needs. The needy client is a double threat under the Rule of Two: he presents interpersonal relationship challenges and usually under-compensates the lawyer.
- If You Ain’t Got the Do-Re-Me. No need to be coy about it—as much as we profess to love the law, we’ve got our own needs and those of our families and loved ones to meet. For those of us who aren’t trust fund babies, we need to be paid. In fact, the business of law usually means that everyone else gets paid first and only what’s left goes to lawyer. Make it clear from the beginning what you expect from the client as payment for your services. If you don’t feel secure that you will be fairly compensated, turn the matter down. Here’s the hard part: spotting the no- or slow-pay client before you accept the matter. There are fee arrangements available to help avoid getting too far out front of the client’s willingness or ability to pay. Security retainers serve that purpose well, but it requires the lawyer to apply the discipline of terminating the representation before the work exceeds the security by a significant amount.
- Conflicts of interest. I couldn’t fully discuss all of the aspects of conflicts of interest in a year of columns. But I remind you of one species of conflict. If there is a significant risk that the representation of the client will be materially limited by the lawyer’s personal interest, there is a conflict of interest. If any of the considerations discussed above will materially limit the lawyer’s passion for the client’s cause, that’s a conflict of interest and the matter should be declined.
I don’t mean to be glib by suggesting that lawyers should be selective when it comes to choosing clients—easy to do if you have the luxury to be selective; much harder when you’re hungry for business. There’s no easy answer to making those tough decisions except to say that some misery simply isn’t worth the money.
Being a lawyer is a tough gig under the best of circumstances. It has the potential to be either a tremendously gratifying way to make a living or a source of great personal anguish. Client selection decisions have a lot to do with which it will be. Choose wisely.