The following article originally appeared in the fall, 2001 issue of "The American Journal of Family Law." We are grateful to editor Ron Brown for his gracious cooperation in agreeing to have us post it here.
Effectively Representing the Unreasonable Client
At the most recent annual conference of the Association of Family and Conciliation Courts, I had the opportunity to present with Louis Parley, author of "The Ethical Family Lawyer"1, a workshop entitled "Representing the Unreasonable Client."2 The topic of this article is a piece of that presentation, namely how to maintain sufficient boundaries with such a client that the work can be completed successfully without the attorney-client relationship blowing up. Before we can focus on the interventions that give the attorney a chance to achieve that goal, it is necessary to examine what we mean by "the unreasonable client."
The Unreasonable Client Defined
On the face of it, unreasonable literally means "without reason," or lacking the ability to fully engage in rational thought. This is specifically what happens to individuals who are caught in their own intense emotions, as so often occurs during divorce. Raging affect compromises both cognition and the ability to behave "reasonably." That is why we see childish or outrageous acting-out during divorce, and clients who are unable to maintain steady working alliances with their attorneys. Some clients' behavior can be explained by the presence of personality disorders or characterological traits that make more socialized expressions of need, feeling, and cooperation impossible. It is likely that many of these individuals are divorcing because of those traits. Other clients behave and think during divorce in ways that are unusual for them, becoming dominated by powerful emotions that cause behavioral and interpersonal regression or deterioration. Some individuals will even experience a once-in-a-lifetime encapsulated psychotic reaction during this stressful time.3 Both of these types of clients require more careful boundary-making by the lawyer, and when done properly it can help them to better maintain focus on the work to be accomplished.
One of the best ways to decide whether a client is unreasonable is by determining what effect the client has on the attorney. It is in the nature of such impact and in the attorney-client relationship that the unreasonableness of a client is most clearly demonstrated.
Problematic clients draw attorneys into problematic situations. The result may be that the lawyer acts in ways that he or she normally would not, or becomes uncomfortable and unsure about how the representation is proceeding. The lawyer may find himself at risk of increased levels of stress and heightened exposure to ethical complaints or claims of malpractice.4 In fact, the lawyer may be more likely than usual to commit ethical violations given the thorny dilemmas presented by the client's demands and behavior.5
Perhaps the complications of client representation are best illustrated by some examples of difficult clients and how they interact with their lawyers. In this way we can examine not what they are like from a clinical psychological perspective, but what they are like as clients.
The client who is helpless challenges the lawyer to overstep professional boundaries to take care of her, to become involved in a more personal way. The lawyer may react by avoiding the client, thus not returning phone calls and falling generally into the trap of failing to communicate, a common citation by disciplinary boards.6 On the other hand, such a client may seduce the attorney into an overly personalized relationship, as in the case of the attractive, helplessly seductive female client and the male attorney who is on the pedestal. Accepting phone calls one ordinarily would not is as problematic as insufficient communication in its indication of faltering boundaries. So is acceding to unusual requests or doing more of the clients' work for the client than one would in other cases.
At times the attention-seeking and seductive charm of the helpless client may indicate a more serious problem in the form of a histrionic personality disorder. At this level of emotional intensity, the lawyers' challenges come fast and furious:
In sharp contrast to the neediness of the helpless, dependent client is the intense demandingness and expectation of the narcissistic client:
Clearly, clients such as these test the lawyer in a number of ways. First and foremost, much of the focus tends to be on the client's psychological state and emotional needs. In fact, some research indicates that between 22 and 40 percent of the total time spent in verbal exchanges between divorce lawyers and their clients is conversation about the clients' emotional problems.9 Most lawyers say that they recognize the inseparability of those issues from their legal tasks and that is important to address them; yet less than half believe they are able to respond adequately.10 The legal system is one of rules, laws, and reason. The clients who enter that system are often in a highly emotional state that is further intensified by the legal process itself. The attorney is at ground zero of an explosion always waiting to happen. It is his or her job to respond to it with no training how to do so... and with an entirely different job to do! That is, of course, to obtain a divorce and a positive settlement for the client. That lawyers become caught between those responsibilities is demonstrated by a number of cases in which courts have reduced fees and criticized lawyers for spending too much time "counseling" their clients while the courts also seem to expect lawyers to make their clients behave reasonably.11
There are a number of dilemmas that arise in the representation of difficult clients, and they create an additional layer of stress on top of that which accrues simply from having to deal regularly with a high degree of emotion and unreasonable behavior.
For example, the ABA Model Rules state that a lawyer should "... abide by a client's decisions concerning the objectives of representation," subject to the lawyer's duty to not offer assistance that violates the Model Rules, nor to encourage or assist in criminal or fraudulent client behavior.12 The Model Rules do not discuss how a lawyer should "abide by a client's decisions" when those decisions change on a regular basis. Nor do they acknowledge the difficulty of walking a line that becomes increasingly thin as the client's emotional turmoil increases.
Rule 1.4 advises the lawyer to "... keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."13 How does one "reasonably" inform someone who lacks the ability to take in information? Is the fifth request for information in a day "reasonable?" When is it "reasonable" for the lawyer to refuse further response? In extreme cases, the lawyer might seek withdrawal from the case, but even extricating oneself can be very complicated, leading to increased acting-out behavior by the client, possibly including a complaint or malpractice suit.
Model Rule 1.14 states that when a client's decision-making ability is compromised by a "mental disability the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."14 But what is a "normal" working relationship with someone who fits the examples described earlier? It could be argued that a conflicted and contentious relationship is normal in that it describes how many of those individuals relate to others. For that matter, how do we define "mental disability" in this usage? The fact is that these definitions are left to the individual lawyer to make.
Because of the stress, uncertainty, multiple and conflicting demands, and vulnerability the lawyer faces in attempting to represent unreasonable clients, it is imperative that he or she possess tools to at least modify the severity of client reactions and behavior. The need for relationship building and maintenance skills is important for the broad array of divorce clients. With the "unreasonable" one, the critical need is to find ways to restore focus and ramp down the intensity when needed, and to keep boundaries firmly in place throughout the duration of the case. We now turn our attention to those tools.
Maintaining the Boundaries15
Building an adhering working alliance involves a number of skills and activities on the lawyer's part, including knowing how to assess what's needed, strong connective abilities, and ways to harness the client's emotionality when it peaks. At the height of affective intensity even the calm, productive client presents a challenge to the alliance. The unreasonable client brings that challenge all the time, and it can reach more alarming levels whenever events test the client's tenuous self-management. Creating and maintaining firm boundaries is the most robust intervention an attorney can bring to those moments, and to the relationship in general.
There are several boundaries to consider. First, the lawyer must reinforce the client's personal boundaries, to remind him what his roles are and are not, where his strengths and liabilities lie, what his place in the current situation is in reality. To accomplish this it is necessary to help the client bind his emotional drives, to bring his affective state back into better balance with his rationality, so that he can rejoin the work more effectively. Finally, the lawyer needs to clearly redefine her own boundaries, what she can and cannot do for the client, what she will and will not do, what she can bring to the process versus what she needs from the client. In essence, the lawyer is saying to the client, "This is who I am in this transaction, this is who you are, this is what we can and cannot do, and this is how we can get it done." The two most fundamental ways to promote clarity of this sort in any relationship are to increase structure and to set limits. This is what you will have to do with your difficult clients.
Structuring language is that which provides a framework for the client to understand what is happening or which increases predictability. You need to go out of your way to anticipate for the client what court proceedings will be like, how he is liable to react to a four-way conference, what tasks will be required in the next week or next month, and how the two of you will need to respond together to those tasks. You need to review and repeat those upcoming events and anticipate possible reactions as often as necessary. These things can't be said too often with a client whose reasoning ability isn't fully present. In fact there are moments when you want to intentionally over-communicate. You may feel obsessive in your attempts to keep the client informed. Keep in mind that insufficient communication is one of the most common mistakes matrimonial lawyers make; and it occurs more easily with a client who can't hear you. Call the client or have a staff person do so whenever there is new information; and send the client copies of everything, accompanied by explanatory letters and forms.
You need to be as firm and clear in your behavior as you are verbally. Schedule client meetings as frequently as you need to, and only as frequently as needed. Be careful about acceding to client requests that go beyond your normal procedures. Attend firmly to the housekeeping chores of your office. Bill regularly, don't ignore late or missed payments, complete tasks on time. This kind of behavior makes you very predictable to the client and reinforces the rules of the relationship. That tends to be calming.
Don't respond to special requests. The unreasonable client's demandingness is likely to increase during times of heightened stress. You may face requests for off-time meetings or meetings in different locations, or a sudden surge in the demand to file motions of little or no merit. The answer to such requests should be a firm and gentle "no," accompanied by an explanation (perhaps for the 10th time) about the rules under which you operate and the need to stay a steady course. While I don't intend to demean these clients, the comparison here is to what happens to a tantruming child when you respond firmly. It is experienced as protective and constant, though there may be loud protests at first.
Finally, to come back to the regularity of office functions, you may again have to say no at times. Having explained the limits of your personal availability by phone, you may also need to limit calls to your secretary if they become excessive. In general, if a client is disrupting your normal office routines, it is a sign that a limit needs to be set.
Untoward Reactions Between You and Your Client
In psychotherapy, the therapist will often observe and track the transference while allowing it to develop. The transferred relationship is seen as a way into the unconscious dynamics of the client and may eventually be interpreted as a very important piece of the uncovering work.
There is no such goal for the divorce lawyer, and a transference that goes undetected or unresponded to can result in massive disappointment when the client runs into reality. Some very negative consequences can follow. It is important that the lawyer be aware of client transferences and remove them from the interaction.
The way to truncate a transference is to orient the client to a more realistic perception of you and the nature of the relationship. The way to do that is to talk about it. Reactions that are based upon unconscious drives and motivations don't stand up to the scrutiny of reality. If you become aware that a client has attitudes toward you or perceptions of you that don't match reality, you should mention it to the client. Try to introduce the topic gently at first, mentioning how the client behaves with you and wondering about her expectations or feelings. If it's been discussed a few times and continues, you probably need to make a more direct interpretation. Inform the client of the commonality of such reactions, remind her of the tasks ahead, and of the work that the two of you really need to do together.
There is a therapist counterpart to the client transference. This is the adoption of perceptions and feelings about the client on the part of the therapist that are based on the therapist's own personalized reactions to the client. This is referred to as the "counter-transference." Once again the same phenomenon can be observed in the attorney-client relationship. A client may set off old, familiar feelings from other situations in your professional or private life, such as the parent you could never quite satisfy or the girlfriend who admired you and looked up to you. Your personalized or distorted reactions to a client can be as damaging to the working relationship as the client transference. It needs to be contained. Ask yourself from time to time if you are having unusual feelings about or reactions to the client, either feelings that are out of the ordinary for you to have towards a client, or feelings that seem out of proportion to the current situation. Whenever you are able to recognize the presence of such feelings, it is important to try to regain psychological distance in order to bring a more realistic perspective back to the relationship. Ask yourself why you may be responding as you are. Then try to pull back to a position of neutrality from which you can reassess the goals of the work and the nature of the working alliance based on accurate expectations of the client and yourself.
the Client to a Mental Health Professional
Many lawyers are hesitant to refer their clients to therapists for fear that it is too intrusive and many of them don't have a record of success in having their clients follow through on such recommendations. There are some ways to make such referrals that can increase the probability for success.
Many matrimonial lawyers experience the unreasonable client as the bane of their professional lives. By understanding how and why clients are unreasonable it is possible to gain enough distance to not be drawn into the unreasonable situations and expectations that such a client produces. Having some strategies and tools such as those we have described can help the lawyer keep the case more on track and the client more collaboratively involved. Even without eliminating the unreasonableness completely, being able to reduce its intensity and keep it somewhat contained can make the lawyer's task easier, the client's focus more sustainable, and the work more productive.
Parley, The Ethical Family Lawyer (Chicago: American Bar Association,
Section of Family Law, 1995).