Sometimes, the best way for an attorney to avoid legal malpractice claims is to avoid certain potential clients altogether. This could be because the lawyer lacks experience in the area of law where the prospective client needs help, or it could be because they are not comfortable with the prospective client themselves.
With experience, lawyers begin to recognize certain signs that an individual could cause problems down the road. When an attorney declines to represent someone for whatever reason, they can take steps to guard against the risk of future malpractice claims.
Legal malpractice insurance can help if problems do arise, but whenever possible, it is better to work to prevent problems from appearing at all.
Reasons to Turn Prospective Clients Away
Lawyers are, generally speaking, not obligated to take anyone on as a client. A lawyer can turn a client away for almost any reason. That said, they should articulate a reason for turning away a prospective client, and be as forthright about it as they can be, especially when the reason does not involve discomfort with the client themselves.
The Lawyer Lacks Relevant Experience
No lawyer can ever master every area of law. Even lawyers with general practices have gaps in their knowledge. If a prospective client needs help in an area where a lawyer does not have much — or any — experience, it is likely to be better for both parties if they do not take the case.
The Lawyer Believes the Case Lacks Merit
Lawyers owe their clients competent and honest counsel. They also have a duty not to bring lawsuits or motions that they know or believe to be meritless. If, after speaking to the prospective client and reviewing their claim, a lawyer does not believe they can bring a winning case, they should tell the prospective client this and turn the case down.
The Lawyer Does Not Have Time for the Case
Lawyers are busy. Many lawyers are overworked, some seriously so. They are under no obligation to take on a new case that would drive their workload past their own limits. An overworked or distracted lawyer could also be more likely to make a mistake, making a malpractice claim more likely.
The Lawyer Has a Conflict of Interest
A lawyer may not represent someone if doing so would create a conflict of interest with an existing or past client. Identifying and avoiding conflicts of interest can be tricky, but it is critically important to avoid both malpractice claims and ethics complaints.
Warning Signs to Watch Out for with Prospective Clients
A lawyer might want to turn down a case because they get a bad feeling from the prospective client themselves.
The Prospective Client Has Unrealistic Expectations or Makes Unrealistic Demands
Some prospective clients come to a lawyer with unreasonable expectations, and nothing the lawyer says can change their minds. A prospective client might come in with a car accident case, for example, believing it to be worth millions of dollars. The lawyer knows that the likely recovery is much smaller, but the client does not want to hear it. This is already a problem, and it becomes an even bigger problem should the lawyer fail to deliver the lavish settlement or award the prospective client expects.
The Prospective Client Is Not Telling the Lawyer the Truth
A lawyer needs accurate information to do their job. If a prospective client’s version of events is at odds with established facts, the lawyer will not be able to provide effective representation.
The Prospective Client Has Had Multiple Attorneys on the Same Case
A prospective client might be looking for a lawyer to replace a previous lawyer. This is not always a “red flag,” but it could merit further review by the lawyer. Multiple attorneys on a single case can point to a problematic attorney-client relationship.
The Lawyer Does Not Believe the Prospective Client Will Be Able to Pay Their Fee
Lawyers must make a living from the practice of law. This means their clients must pay them. Even if a prospective client can pay a lawyer’s retainer, the lawyer might have reason to suspect that they will not be able — or willing — to pay future bills. This can put the lawyer and client at odds, and make malpractice or other claims more likely.
The Prospective Client Asks the Lawyer to Do Something Unethical or Illegal
Lawyers have ethical obligations beyond their duties to their clients. They cannot break the law or their ethical rules in the service of their clients. A prospective client who puts a lawyer in such a difficult position is likely to cause other legal problems for them as well, including potential malpractice claims.
How to Decline Representation Ethically
Once a lawyer has decided, for whatever reason, that they should not or cannot take on a client, what should they do to protect both the client and themselves?
Be Honest, Within Reason
A lawyer should be clear that they are not taking the prospective client’s case. They should also be as forthright as possible about why they are declining representation, but they should do a “gut check” about exactly what to tell the prospective client.
Advise Them of Important Deadlines
The lawyer should provide the prospective client with any time-sensitive information about their case. If a prospective client has a car accident claim with only a few months left on the statute of limitations, they need to know that.
Document the Encounter
Lawyers should take extensive notes whenever they talk to a prospective client. They can document their specific reasons for not taking a case in their notes, an engagement letter, or a disengagement letter.
When it seems reasonable to do so, they should also send a follow-up letter to the prospective client reiterating that they are not taking the case and providing important information like filing deadlines. If they referred the prospective client to another lawyer, they can include that information in the letter as well.
Any information provided by the prospective client during the intake meeting is subject to attorney-client confidentiality rules. The lawyer should safeguard that information as much as they would information obtained from a client.
Keep Future Conflicts in Mind
Now that the lawyer has received confidential information from the prospective client, they should be aware of the potential for conflicts of interest. They could be barred from representing people connected to the prospective client.