The Dilemma of the Difficult Client
Attorneys represent all conceivable interests. The Catholic Church, General Motors, non-profits, insurance companies, and the President, have attorneys.
Some of us represent individual human beings, not very wealthy individuals, almost exclusively.
Today I had an extended discussion with an attorney who I have been barely speaking to. We have a very difficult case together. In the heat of battle, we have frequently insulted and demeaned one other. At the heart of our discussion today was how does an attorney represent a “difficult” client in a family law case?
I believe my colleague has it wrong, and he believes the same thing of me. I interpret his argument to mean that if the client has unwise goals or misguided short term goals, the attorney must pursue those goals without regard to his own values.
I assume that my colleague and I will each recommend and guide the client towards worthy goals. So, the real question is, “What does the attorney do when the client will not follow his advice?”
If the attorney says, “I recommend that you post nothing on Facebook about your divorce, and don’t start dating until the divorce is finalized.”, and the client hops into bed with the first warm body she finds, and trashes her spouse on Facebook, I say it is “par for the course”, and I have a serious, detailed, discussion with the client regarding the ramifications of such behavior. Same thing for a client who “falls off the wagon”.
On the other hand, if a client consistently, stubbornly, even hostilely, resists the guidance of the attorney so that it becomes clear their goals are mutually repugnant, I believe the attorney has no choice but to withdraw from representation.
And, in the interests of honesty, a lawyer usually cannot work for free. It is much easier to say goodbye to the difficult client who does not pay than the good one who runs out of money.
I also believe that if the client is well prepared by the attorney for mediation or settlement negotiations, and makes a reasoned decision to enter into a compromise agreement, and later repudiates the agreement, the attorney, in good conscience, should resign.
This does not cover cases where the client or the attorney forgot a critical fact which changes the effect of the agreement, where behavior of the other side shows bad faith, or where the specifics of an ambiguous provision are not what the client expected.
A perfect example of a time for an attorney and client to part ways occurs when the father of the child is authorized by the Court to pick up the child after school, and the mother insists on being present. If the Court gave him this time, her refusal to obey the Court and her attorney’s instructions should result in a parting of ways.
An example of the other view on this issue is that even if the client has multiple criminal alcohol related charges in one year, and evidence of frequent and heavy alcohol consumption, but denies having a problem, the attorney should stay on the case and deny the problem to the Court, opposing counsel, and himself!
I could not disagree more! As an officer of the Court, a lawyer has a fiduciary responsibility to speak honestly to the Court, an ethical responsibility to act honorably, and a moral responsibility, to the children and to his client. He should not be an enabler. I also feel a strong responsibility to the other parent to deal honestly and professionally.
My view never prevents me advocating for my client in court. But, when I learn that my client was found by the police, passed out in a running vehicle, head resting on the steering wheel, radio blaring, and unable to pass the simplest sobriety test, I will not deny that fact or hide it from the Court.
In the long run, I believe I am more true to my client, her children, and myself, than the attorney who sticks with an impossible client to the bitter end and excuses, or hides, that behavior from the Court.
I know that if I leave the “difficult” client, there will always be an attorney with my colleague’s point of view, happy to take the client’s money and do whatever that client wants. The client will be happier with that attorney, but I will be MUCH happier representing the ones who will follow my advice.
Following my approach does not mean I will not represent an alcoholic, or an abusive spouse. I will help him or her pursue a plan of rehabilitation that will restore health, self-respect, and parental rights. I have done so in long and difficult cases as long as I felt the client was struggling to do the right thing and to follow my advice.
As our debate concluded, my friend opined that my view is contrary to what he learned in law school. I learned very little in law school about representing real people.
Yes, we learned “rules of ethics”, very strict rules, but they seemed more aimed at protecting the profession than helping people.
HOWEVER, I refuse to ignore wisdom I have acquired from places other than law school.
I am comfortable thinking that my experience of representing at least 5000 individuals over 38 years, and extensive reading and thinking, have prepared me to guide people through the minefield of their family law, personal injury, or civil, disputes based on appropriate values and appropriate goals.
Those who want a “mouthpiece” to carry out their every whim, so long as they pay promptly, should hire my colleague, not me.
This post was written by Burton Hunter