Bench & Bar January/February 2026

Flakes also frequently display an inordinate certainty about the law, even or especially when they do not know what they are talking about. Covenants not to compete are a good example – fifty percent of flakes erroneously think they are not enforceable, and the other fifty percent think, equally erroneously, that courts will enforce the most onerous covenants down to the letter. Flakes have been recognized (kind of) by courts. In an often-cited criminal case out of California, an erstwhile judge observed: “I am firmly of the belief that jurors are quite capable of seeing through flaky testimony and pseudoscien tific claptrap. I quite agree that we should not waste our valuable court time watching witch doctors, voodoo practitioners or brujas go through the entrails of dead chickens in a fruitless search for the truth. How ever this is only because the practice is too time consuming and its proba tive value is zilch.” 1 There is an old adage that five percent of your clients cause ninety-five percent of your headaches. In our opinion, that five percent refers to the representation of flakes. THE RAKE The next level of horrible clients are the rakes who want the best advice money can buy; yet, they have a solid opinion of how much that advice should cost. From a historical nature (and in our opin ion), rakes were people of low moral or ethical standards. For purposes of this educational dissertation, rakes are wealthy people who have obtained their prestigious social status off the financial backs of others. They want the best legal advice, but they do not necessarily care to pay for it. The rake has often jumped from firm to firm seeking the lowest cost legal advice they can find. Rakes love to tell you how much you will benefit from representing them at discount. If you represent the rake at a discount, surely clients having pockets lined with gold will follow.

Notably, Abraham Lincoln was correct in stating that a lawyer’s time and advice are their stock in trade. The rake would have tried to negotiate Abe’s fee. The Kentucky Rules of Professional Con duct actually address the representation of rakes —“A lawyer shall not make an agree ment for, charge, or collect an unreasonable fee or an unreasonable amount for expens es.” 2 The Rule goes on to state the factors to be considered in determining the reason ableness of a fee. When the rake attempts to negotiate a lower hourly billable rate, tell them they can have the work they are requesting done quick, cheap or correct; but they can only choose two of the three. As an example, we represented a rake one weekend. The client – a real estate devel oper – wanted to sue his bank for fraud in the inducement and bad faith. In the ini tial meeting (on a Friday), the client wanted the complex complaint to be filed first thing on the following Monday morning. Money, he assured us, was not an issue. Thus, we worked through the weekend to prepare the complaint. When we presented the lengthy document on Monday morning, he balked – concerned over potential cost. We were dismissed and the bill for a weekend’s worth of work went unpaid. When a potential client tells you it’s about the principle rather than the money, you can be assured it will eventually be about the money. You now may be wondering what is the best way to deal with rakes? First, plainly state the basis for your fee in the engagement letter. In our “weekend at the office” case, we should have demanded an upfront retainer and had language in the engagement letter about how those funds would be used and replenished. Second, if the fee is an hourly rate, carefully track your time. Third, scru tinize each bill before they are sent. Make sure the time is accurate, and make sure it is fair. For instance, if a colleague spun their wheels, write the time down, but do not be afraid to discount it. Fourth, send monthly bills and demand timely payment. Don’t let

While not necessarily identified by some sort of odd personality quirk, sometimes the flake can be spotted in the initial inter view. Their goals are often outlandish, and their communications are inconsistent. Eccentric is often a pseudonym for a flake. Once a potential client has cancelled two meetings and forgot another, it is appropri ate to label them as a flake. Another clear indicator of a flake is asking for advice and then telling you what your advice should be. They have already deter mined what path they are going to take and are seeking affirmation rather than advice.

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