View Article

No Good Deed Goes Unpunished
Mark Bassingthwaighte, Esq.
August 27, 2009

As a risk consultant, I have had numerous opportunities to ask attorneys who have been sued for malpractice, “What did you learn from the experience?” One response that continues to come up has been, “There is a bit of truth in the old saying that no good deed goes unpunished.” While the stories behind such a response vary, there are common insights that I feel are worth passing along.

Attorneys often say that their initial misstep was one of poor client selection. Yes, they remind me, even if you simply agree to do a favor for or share a little free legal advice with someone, he or she, too, is a client. Why? It’s because the creation of an attorney/client relationship isn’t about your intent. It’s more about how the individual responds to that interaction and was their response reasonable under the circumstances. There is little middle ground here. If you agree to do a legal favor or answer a brief legal question, understand that you may very well be held accountable for the eventual outcome. If this doesn’t work for you, then either say “no” or clearly document in writing the nature of your limited role.

Another comment frequently shared is this: “I knew I shouldn’t have agreed to take that client on.” I am repeatedly told that if your gut (or a staff member) tells you caution is in order, then listen and say no. There is no rule that says you must agree to accept every client who walks in the door or that you must answer every caller’s question. Thus, if a prospective client behaves irrationally, has an agenda, is confrontational, has needs (or deadlines) that you are unable to meet, can’t afford your fee, or if there is simply some type of personality clash, politely decline the matter. The alternative (agreeing to take the matter on) often results in a headache that isn’t worth it. Time after time I am told that these situations not only evolved into a collection problem, but also resulted in the filing of a disciplinary complaint and/or a malpractice claim against the attorney.

I often see a related misstep that is perhaps best described as the unintentional pushing of one’s comfort zone. The attorney, out of a genuine desire to help someone, agrees to provide assistance in an area of law not regularly practiced by the attorney. The attorneys who have shared their stories state that they often start these “good deed” but problematic representations with the best of intentions, but procrastination and “real client” matters often get in the way of their coming up to speed or following through. Allow me to state this another way: don’t dabble if you are not prepared to follow through in providing competent representation. Giving advice in a vacuum or viewing the request as a favor, as opposed to real legal work, is a serious mistake. And as an aside, remember that friends and family do sue. If you would not be comfortable handling the work for a stranger, than you are not qualified to do it for a friend or family member.

This “comfort zone” problem does not just apply to an attorney’s legal skill set. Interpersonal skills can come into play as well. For example, if an attorney accepts a confrontational individual as a client but at the same time is not comfortable, or competent in dealing with confrontational clients, this attorney now has a serious problem. Understand that no one gets along well with everyone. Sometimes two individuals simply are not going to be able to work well together. When thinking about accepting a new matter, consider the individual in addition to their matter and accept the fact that there are going to be certain types of individuals with whom you will not work well. That’s ok. Learn to identify potential problem situations and develop a respectful way to say “no” when these situations arise.

Clearly, in spite of recognizing that perhaps a “no” was called for, from time to time attorneys have and will continue to decide to accept “problem clients.” They will make a decision to help someone out, to do a good deed. Given this reality, the final advice that I can share if you do find yourself in such a situation is this: document everything. For example, based upon faith and trust in personal relationships with family friends or extended family members, it is easy to assume everyone is on the same page. Don’t get overly comfortable here. Friends and family do sue. While the normal course of documentation, such as fee agreements, may not be deemed necessary, thorough documentation of the decision-making process certainly is. Similarly, confrontational clients are not to be avoided just because they are difficult to interact with. Be extra diligent in keeping them apprised of the status of their matter and again, document all interactions and decisions. If at some later point you become involved in the classic attorney’s word verses client’s word battle, absent supporting documentation, you will likely lose that one. Think about it, if any client is going to start the “he said, she said” battle, it’s going to be the confrontational client. Don’t get caught off guard.

My intention in writing this article is not to try to convince you to never do a good deed for another. I will readily acknowledge that many -- if not most -- good deeds turn out just fine. Someone who really needed the assistance of an attorney received that valuable help and this was and is truly a good thing. That said, I do hear about the situations that didn’t turn out so well and felt that all of us could benefit from a little insight into what went wrong. After all, it’s no fun being punished for attempting to do the right thing and help someone else out.

Return to Listings