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Good Cop, Bad Cop

Posted by Dan Breen on March 29, 2012
billing, client counseling

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“Yes Mr. Smith, court today went well. The judge is putting a lot of pressure on the other side, and while we still have a bit of a road to hoe, I am guardedly optimistic about our chances here.”

“By the way, as I mentioned in my last letter to you, the retainer you paid me will soon be exhausted. I will need another payment from you within the next two weeks or I will be forced to withdraw as your attorney. I would prefer not to go this route, but this is a business.”

If you are a solo attorney perhaps you have been in this situation, and to me, it is one of the more awkward aspects of running a small office. How to provide great advocacy and service on the one hand, while on the other hand, appropriately nudging late-paying clients in the right direction, or when push comes to shove, dropping those clients altogether.

I recently had breakfast with a colleague who transitioned from running his own office to a larger firm in the same practice area. When I asked him about this very situation, he mentioned that a client rang him to complain about the unfriendly call that the client received from accounting. Fortunately could take the position of  “I don’t know anything about that, but hey, if they pull the plug, they pull the plug.”

Of course there are ways to minimize this situation, that include the following, but it is tough when the uncompromising businessman and the sympathetic advocate are the same person.

  • Counsel clients so that their cost expectations are realistic, and do this at multiple times throughout the course of representation.
  • Do a good job of assessing the case and get an appropriately sized retainer fee, with a little wiggle room for the unexpected.
  • Give clients plenty of heads up before the money runs out. Have hard and fast rules about when they will be notified and make sure they know those rules up front.
  • If you have to put the payment pressure on and you are the only one to do it, bifurcate the communication. Counsel the client as you would, but when you call or write about payment issues, communicate only about payment.

Sooner or later though, it is going to happen, particularly in this economic climate. And it might be a little awkward. You have a client you really like, and a case that is quite interesting. On the other hand, business is business. You think ‘I do it this time, and next thing you know I am going to be running a pro bono outfit.’

Even if it is a client you do not particularly care for and a case that you have seen before, you cannot walk away just like that. As attorneys, we have ethical considerations and obligations to our clients, regardless of the money in our trust account.

So what do you do when there is nobody else around to put the financial pressure on? Or even when there is, when the client knows who is making that decision? Is it as easy as distinguishing advice calls from money calls? How do you communicate to a client that you have the gas pedal all the way to the floor until the clock says 0.00 (but once the clock says 0.00…)?

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