Clients, the final moronic entity that stands between you and happiness. Maybe a settlement offer has come in that’s more than fair and you communicate it to the client, who steadfastly refuses to accept it despite the fact they have no money left and are so far behind on their bills even the bankruptcy court is saying “Damn man…” Maybe it’s you telling the client that great idea they’re having is most definitely illegal and will end in an audit and possible prosecution. Maybe it’s the client who wants to enter into a contract that you advise against, multiple times, and ends up owing the guy down the street, who wasn’t a party to the contract in the first damn place, their life savings, car, house, wife, and dog. No matter the situation, every lawyer is dreadfully aware of the fact that when you tell a client Option A is probably the best choice, there’s even odds the client will invent Option Z out of thin air and doggedly pursue it, ignoring the fact that they’re paying you to help them.
Generally, given my longstanding dislike for clientele, this would be a win-win for me. I get paid, I do my job ethically, and an idiot who had just enough in the way of functioning fucking brain cells to realize they needed a lawyer but not enough to listen gets their comeuppance. Life in those situations is a little slice of heaven, right up until the client tries to sue you or bring a bar complaint saying your advice was wrong and their horrors are directly your fault.
“No, Boozy,” I hear you cry, “You mean clients don’t take responsibility f0r their own stupid ass decisions? Say it ain’t so!”
Okay smartass. I get it. This isn’t exactly a shocking revelation, but let me as you something:
Did you paper the file with a CYA letter? No? Well, have fun defending yourself.
See, I’m a risk averse bastard and therefore every client in my office will, at some point, get a CYA letter from me. CYA, of course, stands for “Correspondence (to) Your Attention.” If you believe that, I have some wonderful residential property to sell you in Florida. I’d offer the Brooklyn Bridge, but it appears a client of mine just agreed to but it on an installment contract against my advice. He got a CYA letter, though.
The CYA letter is, in all reality, a “cover your ass” document for the office. It’s a letter you draft up when you’re convinced a client isn’t going to listen no matter what, and therefore you should have it set as a permanent template in your word processing software. Essentially, it’s a nicely worded document that sets forth what stupid fucking decision the client has decided to take, your opinion on the stupid ass decision, and a signature line for the client. Every attorney should know how to write a CYA letter which is simple, direct, and easily understood…but I’ve seen some fucking bad ones out there.
So, given that the production of such a document can help end a client’s malpractice claim before it even starts, let’s take a minute today and talk about how to actually write one of these magical documents.
Recognizing the Need to Cover Your Ass.
Practicing law can be a little like showering in prison, in that most of the time things are fine but, every now and then, you need to be able to recognize when it’s time to protect your ass. This is going to come up most often with the stupid shit clients that are insisting things are matters of principle and aren’t about the money, of the people who listen to your legal advice and then start asking questions about how they can do something despite you telling them the proposal is patently illegal or unconscionable and not defensible at law or equity. These clients are always friendly right up until what you tell them doesn’t mesh with the fucked up reality they’ve created in their tiny little heads, and it sure as fuck translates directly onto their faces. When the eyes scrunch up, the lips purse, and the voice goes up two octaves your client either sat on a cucumber or heard you say something that the completely and fucking totally plan to disregard.
I like watching people ignore me and then crash and burn. I’m a sick prick like that, and it validates my existence to later tell them that if they’d listened they wouldn’t be in that situation. However, clients aren’t the most reasonable people in the world and if given half a chance to pin the blame on you they most certainly will. Accordingly, you should be ready to CYA the moment you realize your advice is going to contradict your client’s desires, because like that little shit kid at Walmart in the toy aisle, they are not going to understand they can’t have what they want simply because they want it.
Keep It Simple For Stupid.
The CYA letter is not a goddamn artistic masterpiece, nor does it have to sound professional and filled with the appropriate legal terminology. You are not writing that shit to impress your client. You are writing that shit to break the topic and their decision, and the likely consequences, down into “moron speak” from Idiocracy. The CYA letter needs to be written in a way that any fucking idiot off the street, and especially the fucking idiot across from you in the conference room, can read it and grasp the “If you do X, bad things will happen to you” tone of it.
State the Issue.
Your CYA letter needs two big parts to it, and the first one is a summary of the dumbass decision the client is insistent on engaging in. You are not fucking vague in these letters, because vagueness gives the enemy, in this case the client that may file the future complaint against you, ammunition to say they didn’t understand what you were trying to tell them. Trust me, when it comes down to a client “not understanding” or a lawyer saying the client is being willfully ignorant, the Bar is going to believe the client lacks the necessary mental fortitude to wipe their own ass without smelling the goddamn toilet paper after each pass. So your letter needs to remove that ability.
“You have stated that you wish to do X,” your letter should say. Then you should describe in fucking detail the situation surrounding X, and the facts to date in the matter. Break it down as if you were explaining the whole thing to a mentally handicapped beagle. That’s the safest route.
State the Consequences.
After establishing the client’s situation and proposed course of action, you need to tell the client what the possible consequences of these actions are. Give those consequences from the least to the worst, just like that. “If you pursue this course of action, you will face sanctions ranging from a citation to being beaten to death by polo players while your mother watches.” Then, of course, you need to state why it is bad in the simplest fucking terms possible. “What you have proposed is larceny. Larceny is theft. Theft is bad. Don’t steal. I have attached a DVD of Sesame Street explaining this more in depth.” Follow up with a firm statement as follows: “Because Big Bird advises against this, I cannot recommend you do this.”
MAKE THE CLIENT SIGN THE FUCKING LETTER.
This one is self-explanatory, but a lot of lawyers email or mail out their CYA letters to the client and then call it a day. I prefer the more direct route of bringing the client into the office, sitting down with them, going over the letter and its contents, then sliding the fucker over with a signature line for them under the words “Seen and Understood” with the time for a date. Why? Because now the client has given you a signed piece of paper that says, with no uncertainty, you actually told them what fucking idiots they were before they went out there and ruined their lives.
While the Bar may assume your client is an idiot, it will also assume that you’re honest until it has reason to believe otherwise. Document this shit, folks.
Guard the Letter with your Life.
I have like three fucking copies of every CYA letter. I have the copy in the file. I have the copy in the fire safe. I also have a copy in a secure cloud server…not the whole file, just that fucking letter. Because I’m a paranoid fuck and my clients often find themselves going rogue and trying to pin the blame elsewhere. However, the few times a client has contacted me to challenge why I didn’t stop them, or the few times another lawyer has contacted me, having undertaken representation of my client after their idiocy became too much for me to handle, the ability to say “Yeah, no, they were explicitly advised against doing that, and still went ahead and did it. Here’s the fucking letter. I have multiple copies. You’ll notice they dot their i’s with little hearts” tends to stop any further issues.
And there we go. CYA letters. Always needed, but hopefully never necessary…and if you aren’t writing them on occasion, well..good luck with that shit, man.