Commentary: Some Scary Scenarios: Know When to Get Out

If a client gets a bad result, the lawyer is at risk of being sued even if she did nothing wrong. Quite often, we represent lawyers who are sued for malpractice when their only mistake was taking the case to begin with or failing to withdraw when they should have gotten out of the case. Some of those suits could have been avoided if the lawyer had turned down the case or withdrawn from the case when the red flags were there to see. Here are some scenarios when you should turn down the representation of a client or seek to withdraw from the case.

You are the third or fourth lawyer to be hired. This is a red flag. If the client has already fired, or been fired by, two or more other lawyers, you may be taking on a very difficult case, a difficult client, or both. It could turn into an experience you will live to regret. Consider passing on the case.

The client is dishonest. If, after you get involved in a case, you determine that your client has lied to you, consider withdrawing. If the client is lying to you, he or she is likely to lie in a deposition or at trial. That could be disastrous for the case. Opposing counsel can be very clever when it comes to uncovering lies. It is better to find out early that the client is dishonest. You don’t want to find that out in the middle of a jury trial.

The client is uncooperative. If a client will not cooperate — e.g., will not provide needed discovery, will not respond to your phone calls or emails, etc. — it is best to withdraw. Explain to the client that you cannot provide competent representation if your client will not cooperate with you. Tell them, like Tom Cruise told his client in Jerry Maguire, “help me help you.”

The client will not follow your advice. I once represented a client at a mediation that was to be kept confidential pursuant to a federal court order. The client was made well aware of that order by the mediator and me. Immediately after the mediation, the client spoke to a reporter who published an article about what happened at the mediation. I knew then it was time to withdraw. If you represent a client who does not follow your advice, and things go bad, you will inevitably be blamed.

The client does not pay your bills. If a client agrees to pay you by the hour but then fails to do so, it is time to evaluate whether to withdraw. We have represented lawyers who were sued after they worked for a client without charge, as a favor, or because they felt sorry for the client. The old saying that “no good deed goes unpunished” often turns out to be true.

The case is too weak to pursue. Be diligent about evaluating a case before you agree to accept it.  If you do take on a client with a questionable case, it is important to warn the client, in writing, that the case may be difficult to win. You do not want to give the client false hope only to disappoint him or her. That can lead to a lawsuit against you. If you take a case on a contingency fee and learn facts that convince you it is not a winnable case, or the damages do not justify the investment of time and money by you or the client, report that to your client in writing and consider withdrawing from the case.

You lack the resources to properly fund the case. Before agreeing to take a case on a contingency where you will be advancing the costs, make sure you have the financial resources to fund the case through trial. If you can’t do that, you should associate with another lawyer who can help finance the case, or recommend the client find other counsel.

No one wants to fire their client but, like in poker, you have to, “know when to hold them and when to fold them.” Staying involved with a difficult client is likely to lead to a lawsuit against you.

Steven Schwartz is a certified mediator with Miles Mediation & Arbitration and a principal at Brown & James in St. Louis. He has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 35 years. He can be reached at [email protected]. The views expressed in this article are not intended to be taken as legal advice.