Resolving Ethical Disputes
“If terms to end a dispute leave bad feeling, then what good are they.” — Lao Tazo
Of course, the best way to resolve a dispute is not to have one. The best and only way to accomplish this is to make sure you keep the client in the information loop. Progress, or the lack of it, cooperation, or its absence, roadblocks, or clean sailing, these are all things which the client needs to know every bit as much as you do. Remember that the origin of disputes is almost always ignorance and time. Finding out something after the fact is no picnic, especially when you're picking up the tab for lunch. The most irate rebuke probably began life as a calm reprimand.
OK, now you find yourself in a situation where you think your client is wrong. There can be many different classes of dispute. Some of these are:
- Your client thinks your work is unsatisfactory.
- You think that your client has broken the law.
- You and your client disagree about the scope of services contracted for.
- You and your client disagree about what is necessary to get the agreed upon work done properly and in a timely manner.
- Your client makes unreasonable demands on you.
- Your client accuses you of ethical misconduct.
- Your client won't pay you or reimburse you for legitimate expenses.
What you can do about such circumstances depends on how well you have prepared for them. The first rule of contracting is: Keep careful, detailed, and accurate records. This cannot be stressed too highly. These records are your backup in the event of a dispute. These records corroborate your testimony. Without such records, all there is on your side of the argument is hearsay, and everyone knows that the client is always right.
The second rule of contracting is: Keep these records where you can get to them. There have been many contractors who found their records beyond their reach because they kept them on their client's computer. By all means, keep that spreadsheet on the client's computer, but back it up every night and take a copy home on a floppy disk in your pocket.
When the dispute first occurs, stop, look at the records, evaluate dispassionately whether there is any merit in the client's claim. If there is even a shadow of doubt, accept the claim as truth and work with the client to ensure that it never happens again. If the client is not willing to work with you, obtain counsel. Give your attorney all the facts in your possession and do as you are told.
When the dispute is invalid, it is important to calmly explain your position to your client. Make it clear that you do not care who's right, but that you are trying to achieve an equitable settlement that makes everyone happy. Figure out how much ground you can afford to give and then stick to that decision. Make as early a determination of the reasons behind you client's claim as you can. Remember that sometimes people do one thing unrelated to the goal they want to achieve. Listen very carefully to your client and see whether there is any clue to hidden intents.
It is important to know when you can successfully resolve a dispute and when you are just muddying the waters for your attorney. The defining point is reached when you are not succeeding in accomplishing anything. At that point, you have fought the good fight, stuck to your ethical guns, and left the field undecided. You can then either let the matter drop (if your attorney says this is an option) or you can pursue the matter with the assistance of a judge.