Can’t live with ’em, can’t litigate without ’em | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (November 11, 2022, 2:42 PM EST) --
Marcel Strigberger
Marcel Strigberger
Clients: yeah or uggh? My learned mentor, Henry, used to say, “The biggest problem in practice is getting clients. The second biggest is dealing with them.”

How true. After 40-plus years in the trenches, I’ll say that clients can generate more aggravations than tough opposing counsel, difficult judges, or technology, the latter which in my practice was generally confrontational. 

What is a client? The word “client” probably comes from some Latin word, “cliens”, which likely means, “OK lawyer. You’re mine.”

Unlike other relationships, a lawyer-client obligation can spawn without the lawyer even consenting to it. Beware of the “phantom client.” Thus dropping some legal gems at a party about how you would fix the clock of that nasty insurance company denying the listener’s claim can potentially expose the lawyer to liability.

He or she may call one day to chat further, and then you discover the limitation date is past due. The “client” asks why the lawyer did not tell him about the deadline that evening at Marge and Albert’s wedding. The only broken clock the lawyer may have to fix now is his own.

This phantom client is a lawyer’s albatross. I can’t imagine some guy whose tooth suddenly pops out. He calls the dentist saying, “Remember when we stood in line at McDonalds, me mentioning my tooth felt funny. You never told me this could happen.”

Then we have the lawyer’s obligation to avoid a conflict of interest. I knew a rogue husband who knew the rules and in order to limit his wife’s choice of top gun family lawyers, hastily called several to chat for a few minutes. When the wife eventually approached these lawyers, her call rang a bell, and predictably they all responded with something like, “Oh, you’re the wife of that dermatologist who called us claiming you moonlight as a dominatrix. Sorry.”

Speaking of pain, once you do get properly retained, you really have to watch your back.

The difficult client

Our e & o insurer warns us of “the difficult client.” There are a number of tell-tale signals of the difficult client.

1) The lawyer switcher

You are potential lawyer number four. The client will point out the faults of lawyers one, two and three, but you have to question if indeed all the other lawyers delayed handling his case as they were all out constantly playing golf. Red flag!

2) Excessively demanding client

This client assumes that your case portfolio consists of one file; his. He’ll call frequently commenting, “When’s the trial? It’s been a week already since you took on the case.”

Or, “My neighbor’s niece got $3 million for her injury. And she only hurt her thumb. That’s not as serious as a pinky.”

You get the picture.

3) The client who gives you money problems

To some clients what does paying your lawyer have to do with the price of a cappuccino at Starbucks?  

I would beware of clients who give you some of the following responses when you ask for funding.

a) Don’t worry about the money;

b) This case is not about dollars. It’s about principles;

c) I always pay my bills. Just ask my cousin Iggy.

In rating the relevance of paying their lawyer, they generally subscribe to the Latin maxim of “de minimis.” If you overlook this, you may be subscribing to the Latin maxim of “pro bono.”

4) The unco-operative client

Do they exist? Grrr. I am talking about the clients who are generally unreachable. They’ll vanish without notifying their lawyer. I actually experienced these too often, and in the midst of cases where I was heavily invested in disbursements. The clients just evaporated. My letters were returned. One client had an e-mail address but my e-mails to him may as well have bounced back reading: “I’ll respond soon. I’m out sailing my boat near the Bermuda Triangle.”

Then there are the clients who simply do not provide you with the documents you need. They’ll say something like, “You’ll have it on Tuesday.” I’m not sure how to say that in Latin but the general translation is, “If you believe that then you’ll also believe this year the Toronto Maple Leafs will win the Stanley Cup.”

Dumping the client

There comes a time when you have to terminate the relationship. Like the Von Trapps merrily sang in the movie, “So long, farewell, aufweidersehn, goodnight.” Unfortunately, the solution is not that simple. It would be great if lawyers can just e-mail the clients that video clip. 

But unfortunately we need a court order to break the shackles. And to succeed you must swear an affidavit showing justifiable cause. However, you need to maintain client confidentiality lest opposing lawyer finds out about your tribulations. 

The phrase of choice is, “I have not been able to get proper instructions from my client.” And so, if when you ask for some money and the client e-mails you an emoji of a wide grin smiley, or the client asks you whether it was obvious to you that he faked his injuries, or if he attends at your office unexpectedly, wearing a costume of the Grim Reaper and terrifying your staff, your affidavit will have to be modified a bit, to read, “I respectfully ask this honourable court to remove me as lawyer of record as I have not been able to get proper instructions from my client.”

Most judges will know what you mean and not press you for details. Some probably are thinking, “I wonder; Grim Reaper?”

And so was Henry correct in his assessment of the client? As they say in Latin, “caveat lawyer.” What say you?

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available in paper and e-book versions where books are sold. Visit Follow him @MarcelsHumour.

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