California Bar Journal
spacer.gif (810 bytes)


spacer.gif (810 bytes)
Malpractice protection imperative
spacer.gif (810 bytes)
spacer.gif (810 bytes)
Protection? Tsk, tsk, not that kind, but the kind that will prevent you from becoming embroiled in the malpractice explosion that may result from the closure of the State Bar’s client-complaint telephone lines.

It is true that some clients used the discipline system to deny their lawyers justifiably earned fees, but at the same time, the complaint analysts sometimes could resolve minor events with little fuss.

Since that type of low-level resolution no longer exists, clients will become increasingly frustrated by their lawyers’ lack of responsiveness, and eventually find a new lawyer who is willing to assert a civil action.

It is for this reason that it is imperative that you protect yourself. The easiest type of protection involves not taking a “trouble” case in the first place. If a prospective client demonstrates certain signs or “red flags,” decline assuming representational obligations.

One type of client to watch out for is the “lawyer wannabe.” This is the domineering client who knows it all and may have some tangential affiliation with the profession, e.g., paralegal, secretary or other law office worker. This person truly believes that, except for the license you have, he or she could handle the case. This person will interfere with the necessary exercise of your independent judgment, and you will encounter serious problems involving client control.

Another kind of client to avoid is the one seeking justice at any cost. In reality, this client is seeking revenge, and must have his or her day in court to prove he or she is absolutely right. This client will not heed your well-reasoned advice. Nothing will make him or her happy except winning, at any cost.

Be wary of a client who has had a succession of prior “incompetent” lawyers (i.e., three or more, depending on the case). He or she will be just as unhappy with you at some future point, and will criticize your performance to the next lawyer (and there will surely be one).

Do not take the case where the client is in a hurry, or if you do not have time to do adequate research. This is the client who needs a court appearance tomorrow and begs you to take the case. This is frequently a manipulative client who intentionally waited until the last day to prey upon your good nature and sympathetic personality.

Does the client want to become your best friend? Run. The attorney-client relationship is more effective where there is a degree of separation during the representation, which acknowledges the fiduciary characteristics of the relationship. This is one of the many good reasons not to represent friends or family members. These cases usually result in trouble. Remember, surgeons do not operate on family members.

Absent the prophylactic effect of the State Bar acting as a barrier, be careful with these problematic clients. Be cautious, exercise discretion, and maybe just say no.

Diane Karpman of Los Angeles represents attorneys at the State Bar and is an expert witness in legal malpractice, conflicts of interest and partnership dissolutions.