July 2003, Page p31

15 red flags for identifying potentially difficult client
By John Wesley Hall; Edited by Elizabeth Kelley

This is my list of “15 Red Flags” for potentially difficult criminal defense clients. It was first compiled based on my 30 years of experience both as a practicing criminal defense lawyer tempered by practicing in a medium-size legal market. I also consider what I’ve learned as chair of the NACDL Ethics Advisory Committee and hearing and reading and writing about criminal defense ethics complaints, malpractice suits, ineffective assistance claims, and requests for fee refunds, from which none of us is immune.1 Take them for what they are worth; this is just my own experience,2 and following them will help you avoid, or at least better deal with or just tolerate, problem clients:

1. Who referred the client to you?
If it was a former client or word of mouth in the community or even the jail or prison, that means your name is out there. But, if you are so prominent, why did not this person recognize your name and call you first? People who have never been in trouble with the law before usually don’t know what criminal defense lawyers to call. As a result, they may just be shopping around (see number 11).
If the client was referred to you by a lawyer, why did that lawyer not want the case or the client? What did that lawyer see wrong with the client or case? If the referral is by a fellow criminal defense lawyer, ask yourself why, and call the lawyer and find out why before you commit. There are multiple possible explanations: the lawyer does not do criminal cases (or that type of criminal case) or did not have time, the lawyer was fired by the client, or the client could not afford the other lawyer’s fee.

2. Is the client a substance abuser?
It is axiomatic that this is a common problem in drug cases, but it can show up in other types of cases. Meth abusers are paranoid, usually (but not always) difficult, and virtually always in denial; crack abusers are just in denial but at least can be reasoned with; marijuana abusers are mellow and are seldom a problem.

3. Does the client too readily assign blame for his or her predicament to others?
Again, this is a product of denial. If the client is responsible for the crime, is he willing to admit it, or is he always giving excuses and blaming others? If so, he will blame everybody else, including you, for his conviction. If the client is truly innocent, he has a right to assign blame to others. But even the truly innocent will not always blame others.

4. Is the client unduly angry about what got him into the criminal justice system?
If so, at whom and why? Is it justified? It may be. The client has a right to blame the cops for the illegal search or some other violation of his or her rights in the conduct of the investigation, but without some acceptance of responsibility that the client knew that what happened was wrong, the client is in denial.

5. Is the client whining about police mistakes as an out?3 
Does the client see every potential mistake by the cops and prosecution as an escape route? Whiners invariably ask.

6. Is the client obsessed with his case in trying to find excuses?
As a corollary of number 5, does the client come in with many pages of handwritten notes about the case? If the notes are a straightforward presentation of the facts, this is good; if they show excuses and unrealistic denials or demonstrate his paranoia, this is bad. Later in the case, do you get reams of repetitive handwritten notes, letters, or e-mails about all the things the cops did wrong or what you need to do?

7. Is the client’s wife or mother the one trying to dominate the conversations? This is always bad in my experience. This usually shows up on the telephone, and it can sometimes be funny: wife, girlfriend, or mom4 is filling in the blanks for the client in the background every time the client speaks a sentence. Cut to the chase and talk directly to her.

8. Does the client argue about your original assessment of the case?
That is, does the client have unidentified legal information from “the street” or prison.5 “And what lawyer told you that?” always smokes them out.

9. Always avoid clients who think they know the law better than you.
Do they argue with you over the applicable law? You never want them as clients. Tell them that if they think they know the law so well they should represent themselves.

10. What is the client’s reaction to your fee requirements? 
Never bargain your fees (setting fees is the subject of another column). When they say “money’s no object,” I’ve found that 9 out of 10 times it is, but that’s just my experience. This factor depends upon the lawyer’s experience and normal fees.

11. Avoid clients just shopping around.
To me, this is revealed by their not immediately recognizing my name when I return their telephone call. I know from that they have called numerous lawyers, and my name is not immediately apparent to them. They want just anybody.

12. What is your secretary’s or receptionist’s opinion about the client and those with him?
 Sometimes they say or do strange things while waiting for you. Caution your secretary or receptionist to share such things with you before you commit to taking the case.

13. If your gut tells you “no,” listen.
Your gut instinct about the client being a potential troublemaker for you is usually correct.

14. Do you avoid the problem client entirely or do you take the case and factor a multiplier into the fee because you will have to deal with the client?
I unabashedly have called this the “AF,” the “asshole factor” at at least two dozen CLEs. Life is too short to put up with assholes, even if they are paying you. If you have to put up with one, make it worth your while.

15. If you took the case and it turned out to be a serious mistake, can you fire the client before it is too late?
Counsel may withdraw for good cause, such as the client engaging in conduct that tends to degrade or humiliate the attorney or client’s refusal to cooperate.

Notes
1. Yes, even the author has had ethics complaints, malpractice suits, ineffective assistance claims, and requests for fee refunds made by disaffected clients. It happens to all of us at one time or another. We can’t make all clients happy, no matter how hard we try, because some of them have unrealistic expectations. Unrealistic expectations must be avoided (this will be the subject of a later column). The problem here is that these clients have created the unrealistic expectations themselves.
2. Caveat: What I say about fees below obviously does not apply to public defenders.
3. A common refrain: “They didn’t read me my rights.” “Did you make a statement?” “No, of course not.” “Then it doesn’t matter.” “I thought they had to read me my rights.” “Only if they are intending to try to get a statement.”
4. I’ll leave the psychological issues for others, but I’ve often found that the client’s relationship with his mother can be the larger cause of his social problems.
5. Some information from prison legal sources can be quite valuable even to the experienced lawyer, but 90 percent of it is just plain wrong.


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