Fargo & Moorhead Legal Team

Attorney-Client Expectations

When I saw the news, I was shocked and saddened. It left me with the feeling that what had happened could have easily happened to me. In April 2016 a new law clerk working at a small law firm in St. Paul, barely 23 years old, was horrifically gunned down by a crazed client his firm was representing in a criminal defense case.

Don’t get me wrong, the act itself was absolutely horrible, and I believe it was a rarity that a situation like that would ever happen. The events leading up to it are what struck a chord with me. For that, I felt compelled to touch on the issue of client expectations. While I can only speculate whether the gunman had an underlying mental condition, it was his behavior leading up to the shooting that I see all too often in practice.

According to the news reports, the gunman in that case had retained the attorneys at the law firm to handle a criminal defense matter for him around the end of March. By April 7, (a little more than a week later), the law clerk was dead. The gunman client had sent several text messages to his attorneys that day inquiring about his case. This is a red flag, right there. I will explain later. His attorneys were in court all day and were unable to respond to the client’s texts. After receiving no response from his attorneys who were in court, the gunman client fired his attorneys, also via text message, and demanded the return of his money. Still receiving no response because his attorneys were occupied on another client matter in court, the gunman client stormed the office and mistook the law clerk for his attorney, shot him several times, and fatally wounded a seemingly bright and promising young man. You can read the full article here.

Clients, by nature are antsy over uncertainty. Maybe the client has been charged with a crime, and the client wants to know how it is going to play out. Waiting with uncertainty hanging over your head is a very difficult place in life to be. Maybe a client has been wronged civilly and needs to sue to recover money. The client is broke, and his financial situation is getting worse by the day. The client will certainly want to be “made whole” again in the shortest amount of time possible. Managing clients’ expectations is one of the more difficult aspects of running a smaller law firm. It is rare where a legal matter might progress quickly through the courts. Right now, courts are backed up, and it can take weeks, or months to find a mere 15 minutes on the court calendar to hold a hearing on a particular issue of a case. Additionally, there are rules of civil or criminal procedure that require certain amounts of time that the adverse party must be given notice of an impending hearing. When a client retains an attorney on Day One, the attorney will probably not have an answer for the client on Day Two, or Three, or Four. . . . or even Day Thirty! This is not your attorney’s fault. It’s how the rules are written or the court’s docket happens to play out.

Remember the childhood game (or college drinking game) “Never Have I Ever?” Great! I’ll start. “Never have I ever had a client walk into my office and put down a $150,000 retainer.” Who here would raise their hand (or chug their beer, however your version of the game went)? Now, I’m not talking about big law firms. I’m talking about small law firms with one to three attorneys. Probably very few of us would ever claim to have a client come in and pay that kind of money. Reality is what it is, though. $150,000 is about the amount of money it would take to buy my total exclusivity until the resolution of your case, assuming it is complex and lengthy. Out of that, I would pay my assistants, my overhead, my operating expenses, and myself (minus taxes). My firm and I would be completely and absolutely dedicated to you, and only you. I would not take phone calls from other potential clients, I would not go to court on other client matters, I would not spend my time preparing briefs or reading documents for other clients. For that kind of money, my firm is dedicated only to that client. Again, not once has a client come to my firm and stroked a check for that kind of money. While the $2,500.00 initial retainer you paid for your DWI case might seem like a lot of money to you, that amount barely covers the cost to employ my part-time staff for a month. Therefore, reality sets in. Attorneys have to take on other clients to keep their business functioning. This means that your attorney probably has to read through other ominous client files, thousands of documents that have nothing to do with your case, and attend court hearings or trials that can take several days in other parts of the state for other clients of the firm. Unless you are willing to put down a large amount of money, your attorney will not always be available for you at your beckon call.

When I mentioned the news article above about the law clerk being shot, I mentioned a “red flag” in the story – the fact that the client was sending several text messages to his attorney.

We live in a world where everyone is used to instant gratification. Remember the days when you would hear a song on the radio, write down the title and artist (if the DJ would announce it), save up the $15.99 you would need to go to Best Buy or Media Play and buy the CD? Usually the CD had the one hit song on it, and the other thirteen tracks were junk or never became hits. Nowadays we simply log on to the computer, go to Amazon or iTunes, and get the song instantly for $1.29. Instant gratification. Remember the days when people only had landlines and answering machines? A person would have to pick up the telephone, call someone else’s landline, leave a message if the person wasn’t home, and wait an agonizing amount of time until the person returned to their house, checked the machine, and called you back. Nowadays, seemingly everyone has a cell phone that they carry with them all the time. Because of the mobility of communication, we have created the expectation that the person you are trying to call or text is always available. The “red flag” in the situation described in the news article is that the attorney gave his client his personal cell phone number. Despite the fact that the attorney was not at all available to take the client’s call (cell phone use during a court a proceeding is not allowed), the gunman client did not know where the attorney was, and simply thought the attorney was ignoring him, which caused him to become progressively more irate. Nonetheless, the attorney, by giving his client his cell phone number, unknowingly created the expectation that he would always be available to the client, no matter what. It is never a good idea to give an emotionally-charged client your cell phone number. Had this attorney insisted that the client only call the office line, the receptionist or the law clerk would have informed the client that the attorney was in court all day and not available. The client (assuming he was mentally sound) would have understood that the attorney was not blowing him off, and the situation could have possibly been avoided.

On occasion, a client will get a hold of my cell phone number. I just love those calls or text messages to my personal cell phone from a client at 10:45 p.m. asking, “What were the recommendations of the chemical dependency evaluation the prosecutor sent over last week?” I don’t know! Do you honestly think that I carry your case file around with me all the time or memorize each document from each client file in the event someone happens to call me late at night? If the client knows your business hours and knows to only contact you on the business phone, it sets a more realistic expectation for clients to follow.

It is tempting to give a client your cell phone number in order to give you the edge over the other attorneys who might not be so eager. Browse through the phone book or look at the billboards going down the road. The advertisements might say, “Answers your call 24/7.” While it may be a great hook to scoop new clients, you have set an unrealistic expectation that will follow you through the remainder of your attorney-client relationship. Once you’ve inked the retainer agreement with your client, the client now thinks he can call you on Christmas Day, at 3:00 in the morning, or at any time when a fleeting thought rolls through his head. If you happen to be on a camping trip in the Boundary Waters with no cell phone service and your client has a question, it couldn’t be that you are simply unavailable. In the client’s mind, however, you must be ignoring him because of the unrealistic expectation you’ve created by advertising continuous availability.

It’s a tough business sometimes. Cut-throat competition has led attorneys to market themselves in a way to get an edge over the attorney just up the road. I don’t blame the attorney in St. Paul for giving his client his cell phone number. My heart aches for the family, the friends, and the colleagues of this young, aspiring law clerk who was slain in cold blood. While there was absolutely no way to predict that a client is going to go off the rails and shoot up your law firm, it is an extreme example of how a failure to set proper expectations can snowball into something much worse.