'The check's in the mail'

Michael Kemp
BridgeTower Media Newswires

As many years as I’ve been practicing, this was the first time this particular cliché has happened to me—and it happened twice in one month. I got the “the check’s in the mail” from a client. There was no check in the mail.

Oh, I’ve certainly had clients not pay. I’ve had clients who stopped returning my phone calls. I’ve had clients who apologetically claim they simply don’t have the money. I had one client who flatly refused. Like everyone else in solo practice, I haven’t made nearly as much money as I’ve been promised. That’s an expected part of doing business. And I know, just as I was told when I started this practice and just as I’ve told everyone who asked about starting a small practice, that you have to be comfortable taking a case for the money you receive up front.

There are very few places where you can expect to go, get a service, and worry about how and whether to pay for it later. Lawyers and doctors, I guess, and probably a few others. Your dentist might charge you on a sliding scale, but there are very few places where you can request a fee based on need. No matter how badly you need a haircut, you never will be successful going in to Great Clips and asking for a haircut on the promise that you will pay for the cut at some time in the future. But the client’s ability to pay tends (at least for solos) to be taken into account already when you make an agreement with a client on attorney’s fees. It’s  part of the risk you take, and hopefully you try and get a read on the client right away about their ability and willingness to pay. I’ve certainly refused to take clients, or fired clients extremely early in the representation based on that read. We all do. We all have to.

But sometimes I’m wrong, and this was the first (and then the second) time this particular thing had happened to me. I wasn’t thrilled, of course, but I try and take the long view. But while not getting fully paid is common between solos, the way we deal with getting paid is highly varied.

There are definitely the hard-liners. There are certainly some lawyers who have no problem taking their own clients to court for unpaid attorney’s fees. I don’t particularly have a problem with them demanding payment under all circumstances. At its common core, holding people accountable is what we all do as lawyers. Yet for some solo practitioners—not all, but a subset of solo or small firm lawyers, definitely including myself—there is something not right about that. Not wrong, either, just not right. And it has to do with the way we came up.

If you started your practice under ideal circumstances, you started your practice from a place of strength. You had a reserve of capital or a decent line of credit, have managed to build up your business successfully. Not everyone did it that way, though. I certainly did not. I started very slowly. I didn’t have an office for a while, until I was sure I could pay for it. Westlaw came much later; I started the practice using Google Scholar Search and law libraries. What I spent on the business depended on what came in, and when I paid my bills depended on what came in. It was a struggle, every day, and I won’t deny ducking phone calls from creditors while I worked to build the business to the point where I didn’t have to.

I don’t advise this method, if you can help it. It’s not a good way to start a business. Hell, it’s not a good way to live. But among the lost generation of lawyers who graduated in that 2008-2011 (or so) timeframe, it was not uncommon.

I say this as a way to frame a view of clients who can’t pay. Because I must confess, I feel a little hypocritical coming down the mountain with clients who can’t pay their bills on time, when I’ve had to do the same thing in my life. I feel, and I think there are others who feel the same way, a sense of almost-revulsion when taking a hard line with clients’ bills. Like there is a sense of circularity to the whole thing: if clients don’t pay you, you can’t pay the people you owe money to, who can’t pay people they owe money to, one of whom might be your client who can’t pay. For a small but significant subset of solos, the frustration with clients who don’t pay is a little offset with a sense of solidarity: “I’ve been there, man.”

I’ll give these guys a pass — once. Maybe it’s not their fault. I know both of these guys are in the same situation as I am. They’re small-business owners, who may have had problems with their own clients’ payments. So while I completely understand those who take a hard line on client payments, I can’t take that same line myself. I’ve been there, man.