Monday, May 21, 2012

Attorney Enochs Interviewed for Article in Wisconsin Law Journal on "Troublesome Clients"

I recently interviewed for an article written by Jack Zemlicka of the Wisconsin Law Journal on the issue of "troublesome clients."  The link requires a subscription but the full body of the article is below:

Cutting the cord: Attorneys weigh risks when breaking ties with troublesome clients

Glendale solo practitioner Randy Enochs hates to turn away business, even if it means catering to a combative client.

But sometimes, the risks outweigh the rewards, even when there could be a lucrative payday.

In May, Enochs, of Enochs Law Firm LLC, walked away from what could have been a nearly five-figure contingency fee in a workplace sexual harassment case. There was a lot of merit to the claims, he said, which initially drew him in.

But he pushed himself back out when he realized the client was not worth the hassle, Enochs said.

The female client lied about hiring prior representation and engaged in constant disputes about Enochs’ legal reasoning, he said. Eventually, he found out the woman was shopping for another lawyer behind his back.

“I called her about the case, and she answered her phone while she was in another lawyer’s office,” he said. “It kind of put a nail in the coffin.”

After two weeks of battling through representation, Enochs turned the case file over to another attorney two weeks before the client’s court date.

“Given my experience with previous clients, I don’t want to put myself in a bad position,” Enochs said. “Unfortunately, a lot of young attorneys are a slave to the dollar and money people will pay.”

Though he sacrificed the potential payday, he decided the case wasn’t worth the risk of having the woman tarnish his reputation if she lost, or worse, filed a complaint with the Wisconsin Office of Lawyer Regulation.

“That is something I want to avoid at all costs,” said Enochs, a 2007 law school graduate. “People are very Google-happy these days, and you can have the worst reputation online but be the best attorney in person, and people would never know that.”

In five years of practice, Enochs said, four people have filed grievances against him. Two grievances were from pro se opponents and the others were from disgruntled clients who had lost, he said.

While none of the complaints resulted in OLR discipline, he said, the experiences led to a better-safe-than-sorry approach when dealing with clients, even if that means surrendering a fee.

But attorneys walk a fine ethical line when deciding when to discontinue their relationship with a client, said Dean Dietrich, former chairman of the State Bar of Wisconsin’s Professional Ethics Committee.

According to Supreme Court Rule 20:1.16, lawyers are generally prohibited from withdrawing if the action will have a negative effect on the client.

There are broad exceptions, however, that protect attorneys. If notice is given to a client and the court, lawyers can withdraw if the client fails to pay, commits a crime during the course of representation or engages in conduct the lawyer considers “repugnant.”

There is always that risk, however, Dietrich said, that the client will file a grievance with the OLR.

In fiscal year 2010-’11, about half of the 2,377 inquiries or grievances filed with the OLR came from clients, Dietrich said, and 22.7 percent of grievances were for alleged lack of diligence on the part of attorneys.

OLR Director Keith Sellen said, on average, 80 to 85 percent of complaints are dismissed for lack of evidence each year.

“That means there is an identifiable ethical rule that may have been violated,” he said, “but the evidence we receive during intake from the grievant and lawyer is such that it’s clear the lawyer did not violate the rule.”

While the odds are in favor of the OLR dismissing a client’s complaint, it isn’t worth the gamble, said Milwaukee attorney Evan Knupp, of Roney & Knupp LLC.

On more than one occasion, Knupp, a 2009 law school graduate, said he has forfeited a portion, or all, of his fee to separate from a troublesome client rather than risk a complaint.

One case involved representing someone with a rental property in foreclosure. Knupp said the client wanted him to figure out how to unload the property, but there was no easy solution because the city was seeking back-taxes.

“I sent him an invoice for an hour’s work, and he got upset and claimed he already knew what I found out, which he didn’t,” Knupp said. “Because it wasn’t what he wanted to hear, he demanded a refund.”

The decision to dump the client cost Knupp about $200 in a partial refund, but saved him the aggravation of defending against a potential complaint, he said.

When evaluating clients now, Knupp said, he looks beyond the potential payday for red flags such as previous poor experiences with other lawyers.

“If they come in trash talking about how lawyers never do anything for them, then I try to be clear about what I can do for them,” he said. “But it’s risky to take on the type of person who might immediately file a complaint if things don’t work out. Those are the ones that scare me.”

Even if combative clients don’t file complaints, they can still be bad for business, said Brookfield personal injury lawyer Jeff Zirgibel, of Pasternak & Zirgibel SC.

In a recent case, Zirgibel said, he became increasingly frustrated with the client’s incessant inquires, which included more than six calls each day for nearly two weeks.

“It was a good case that I didn’t want to turn away, but this person was getting increasingly needy,” he said. “It was getting to the point of where she was keeping us at the firm from being able to do our jobs.”

In his 16 years of practice, Zirgibel said, he has had a handful of such situations in which he either referred clients for a second opinion on their case or cut ties.

None of the breakups have led to OLR complaints, and, Zirgibel said, he has learned to terminate troublesome relationships when they get to the point of diverting his and his firm’s attention from other clients.

Zirgibel has the benefit of a law partner and office staff members to share the burden of a problem client.

Enochs is on his own.

He said it’s been trial and error figuring out when to forsake a paycheck instead of putting his career in jeopardy.

In the sexual harassment case, Enochs said, his experience prompted him to bow out before things got worse.

“I didn’t want to put myself or the client in a bad position,” he said. “Sometimes, that supersedes the person’s problems and their claims, no matter how good they are.”

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