In the past, I’ve discussed the 90/10 rule, evidencing that 90 percent of pain in your practice is caused by 10 percent of your clients. The gist of that article is for all of us to be judicious in not accepting assignments from that 10 percent category.1
In this month’s column, I’ll explore from a practical side how to say “goodbye” (not “good riddance”) to clients who’ve become ex-clients. This topic has been explored elsewhere from a legal ethics standpoint: What are an attorney’s ethical duties to withdrawing clients in terms of sending documents, confidentiality and coordinating with new counsel?2 Here, I explore it from a best practice standpoint, that is, what protocol an attorney should follow.
Here’s my 5-step program:
Step 1: Plug Your Nose
What’s that odiferous, noxious spirit in the air? It’s the knowledge that you have to commit priority to a project that you’ll neither get paid for nor appreciate or enjoy.
Rather than package up and send my withdrawing client his file, let’s see what else is on my agenda. I could stay home with the stomach flu? Or, get that achy tooth pulled? Maybe I’ll view my old girlfriend’s Facebook page, where she talks about how successful her five children are and discusses her husband’s recent invention of a new antibiotic? Hmmmm, all of those seem better than boxing up the file and doing other endgame activities for my former client. Unfortunately, those other activities must be relegated to second place while I deal with client matters.
Step 2: Maintain a Good Reputation
Lawyers too can come up with silly, yet clever, double entendres. And, “reputation matters” is nowhere more relevant than when it comes to former clients and ending a relationship.
My personal bias is that as much as I strive to be the best lawyer I can possibly be, and always do or strive to do great work for my clients, in the end, the most important action I can take is to preserve and enhance my reputation as someone who cares about clients, has integrity and is trying my best. And, in these pursuits, I’m the same as my attorney colleagues. We’re all trying to achieve and maintain those standards.
As we do that, we have to realize that, at times, third parties may not perceive these actions the same way we intend. And, those third parties have the ability to damage one’s reputation. We know this is the case with opposing counsel in contested matters, and hey, why not treat those folk with respect, while still strongly advocating for our clients?
A more subtle instance in which reputation is on the line is with departing clients. They aren’t departing because they love you. Have you not responded promptly? Were the documents too complicated or the fees too high? Did you make a quip that was offensive? As my dad once said about a prospective employee he didn’t hire, “I didn’t like his tie.” Sometimes, we don’t know what caused the offense. But, an offense was done.
We need to not so much fix the offense, as not enhance it.
For example, if a client wants out, and it takes three weeks for her to get the files, she’s going to dislike you a little more.
Therefore, recognize that your actions on departure are intended to prevent further ill will and, to the extent possible, maybe get back some of that good reputation that we all strive for.
Step 3: Organize and Focus
You know that file on the floor in the corner of your office that looks like the Leaning Document Tower of Pisa, the one with about two feet of loose papers stacked on it? You were going to organize it shortly, as in the year 2013, but that year has come and gone, and the tower has grown larger. Well, now that client has morphed into a former client who wants the file.
Here’s a suggestion: Organize it now. And, subject to ethical requirements that a client’s file belongs to a client, take some time to figure out what should be sent to the client and organize that file in a way that will allow the client, and the next attorney reviewing the file, to understand that you approached the file, the documents and the client matter in an organized way.
Step 4: Follow the Mies Van der Rohe Approach
In my approach to life, I try to discard annoying friends (is that last phrase an oxymoron?) and want them to become ex-friends. As to my quality of life, I view this discarding as addition by subtraction.
I tend to think files should work in the same way. Too many files can be a bad thing. Twenty years ago, contrary to the teachings of my elders, I started throwing away drafts. Why keep them? There really isn’t a reason. A final, signed document speaks for itself. Paul McCartney doesn’t like bootlegs of “Hey Jude,” showing how the song was created. And, I don’t need drafts showing how the document was created.
Do we need drafts that were sent to clients? I’m okay either way. I like to save cover letters, but in terms of the drafts, I don’t really care if they are or aren’t in the files.
I’m not too keen on notes either. Notes get translated into the documents; therefore, why do I need them in the file?
Correspondence? Much harder discussion because I routinely have over 1,000 pieces of email data per significant client. It’s a burden to get these printed out for a file transmission.
Conversely, putting them all on a disk is dangerous. Have I reviewed the emails to make sure they’re truly about that client? Is an email internal and not really the province of the client? Are there derogatory remarks on an email? (I certainly hope not by me, but I can’t control remarks from others I work with.)
Accordingly, my correspondence file on transmission may not represent every piece of correspondence, while being mindful of and consistent with ethical responsibilities.
Then there are the originals. These need to be carefully listed out, and your former client needs to sign a receipt that he received the originals (or his new attorney received them).
Step 5: Send Blueprint for Future Action
The file has been reviewed, the documents organized and you’re ready to transmit. Stop. One more action to take. In your review of the file, are there pending matters that need to be attended to, lost documents or planning strategies that you discussed that need follow up? Politely detail those in the cover letter. Set forth a blueprint for what the client should do going forward.
Why not? You won’t get paid for it, but again, reputation is king, and your goal on the exit is to preserve and enhance that reputation. Not a problem to provide a freebie here. You’ve done the work, and you should get credit for it.
And, say a few nice things on the exit. All relationships, even the 10 percent ones, have had moments of happiness and glory. Note those, wish your former client well (and mean it) and be a kind individual. There’s enough meanness in the world, and especially in the practice of law. Let’s spread a bit of love if we can.
The Attrition Method
This final comment—also known in dating parlance as the “attrition method”3—seeks to bring to an end a relationship that’s soured by making the other party the one to terminate it. Here, the trick is to achieve the exit without having the other side really dislike you.
For example, in dating (an easy metaphor since we’ve all been there), the trite aphorisms on exit such as, “It’s not you, it’s me,”4 or “I love you but am not in love with you,”5 provoke anger and possibly a dead cat on the pillow next to you one morning. The attrition method is a much kinder and gentler way to deal with it. “Oh, I haven’t called in a couple of weeks, months, really? Well, been sort of busy. Sorry.” Using this method, you slowly and gently fade into the background of importance, and the relationship disintegrates on its own inertia.
Alluding to a more erudite reference, Crime and Punishment, the goal is to have the guilty party admit guilt. A client who feels that he’s just not the right fit for you is quite a bit better than having to terminate him or having him get angry because you give him low priority. Be thoughtful in leading the client to the bad fit realization. Typically, all you have to do is be a good practitioner; for example, have you sent out bills timely, without excuse for the time incurred in a matter, and without discount? That may do the trick. Or, making sure a client knows how sophisticated your practice is, assuming it is that, may lead him to realize he’s not for you.
And, be kind and considerate to all clients, especially those that are in transition to becoming former clients. After all, the work done here with departing clients will have better long-term results than a visit to your ex’s Facebook page.
1. Louis S. Harrison, “Tips From the Pros: Avoiding the Dark Side: Darth Vader and the 90/10 Rule,” Trusts & Estates (June 2017).
2. See, e.g., Louis S. Harrison and Nancy C. Hughes, “How To Practice Law, Abide By the Rules of Professional Conduct, and Have a Life That Rules,” 48th Annual Heckerling Institute on Estate Planning presentation in Orlando, Fla. (2014).
3. It’s known as that only by me.
4. Wrong. It’s always You.
5. Meaning, I find you physically and spiritually unattractive.