The Case of the Stolen Client


The day before yesterday, Ft. Worth criminal-defense lawyer Young Shawn Matlock wrote about The Lawyer Known as Weinstein, who “Would do anything to get a client. Back in the day, he even went to the client’s home. He makes whatever promise he needs to get the client. After all, it’s no problem for him. The problem is the client’s when the client realizes he has hired a hack to defend him. I’ve even known him to steal clients before.”

I am with Shawn most of the way. I’m hugely frustrated by the hacks who, to get hired, make promises they can’t keep. They are doing a huge disservice to the clients, to the bar, and to the profession. But I don’t believe that one lawyer can steal another’s clients.

I’ve been on the receiving end of a motion to substitute plenty of times. I’ve been fired enough times that I’ve thought about writing a paper on the ethics of getting fired. It generally sucks when a client decides, for whatever reason, to hire someone else. The client usually doesn’t bother to explain to the former lawyer where things went wrong. It’s often an ego blow.

But I’ve been the one filing the motion to substitute much more than I’ve been the lawyer replaced.

Each time that happened, the former lawyer might have supposed that I had been hired because I told the clients what they wanted to hear. The truth, though, is that when I’m hired to replace another lawyer, it’s always because, in one way or another, trust has failed between that lawyer and the client.

Trust usually fails because communications break down. I remind the client — every client — that he has made an investment in the current lawyer, and I tell him that he should first try to repair the trust between him and his current lawyer before changing lawyers. Only if that fails, I tell him, should he hire someone different. People don’t hire me because I tell them what they want to hear. They hire me because I listen to what they tell me and I know what to do with it.

Often, if the former lawyer was a businessman, focused on and driven by money, he might have assumed that I had been hired to replace him because I had charged less than he. To the contrary, when I’m the second lawyer on a case, the client is usually paying me much more than the first lawyer was charging.
Some lawyers — generally either old-school incompetents or rank newbies — think that it is unethical for a lawyer to talk to a potential client who is already represented by counsel. This is not the case.

Other lawyers think that it’s okay for a lawyer to talk to a potential client who is already represented by counsel, but only after notifying the current counsel. This is also not the case. In fact, if a potential client calls to talk to me about his case, I can’t reveal that fact to anyone — including the client’s current lawyer — without the client’s permission.

When I substitute in for another lawyer, I’m not “stealing” the client. The case belongs to the client. The client does not belong to the lawyer. Clients are free to switch lawyers, even to their own detriment.

When an unethical lawyer makes false promises to get hired, he’s doing wrong, but he’s not stealing the client either. The unethical lawyer is not stealing the client. He is, rather, stealing the client’s trust.

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0 responses to “The Case of the Stolen Client”

  1. I COMPLETELY agree with your bottom line. The case is the client’s, not the lawyer’s. So long as the other lawyer isn’t trolling for clients I don’t have any beef with a lawyer who tskes on a case that was mine. I might be pissed, but probably more at myself than the other guy. By the way – thanks for pointing out that I blogrolled Greenfield twice.

    Mark

  2. I agree with you too. At least for the most part. But I do think it’s “stealing” whenever Weinstein tells a client something that he should know is not true to get the client to allow the substitution. I think that’s stealing.

    But I do agree with you on the rest. I would say I have probably subbed in on more than anyone has subbed in on me. I think that is different.

    My problem is this scenario. Client comes in and hires me. then he starts to get hit with all of the letters from lawyers looking for clients. He calls one of them up (in this case Weinstein) and is told something completely false as a sales pitch. The lawyer goes in and meets with Weinstein and decides this is better. I think that is stealing.

  3. My point, Shawn, is that he’s not stealing from you but from your client. You have no proprietary interest in representing the client.

    Assuming that you clearly and correctly explained the situation to the client, if the client jumped ship so easily you’re better off without him.

  4. Hey, why did you tell mark jakubik that he had me in his blogroll twice! I get extra points for that. And mark jakubik, don’t forget about Gideon at A Public Defender. He was the guy who started the whole ethics war the other day.

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