As lawyers, we become well-acquainted with the color red throughout our legal careers. From law school essay question red herrings to whether the stoplight was red at the time of the accident, the color typically connotes a warning or prompts you to stop. We likewise must beware of any red flags during the client intake process before accepting representation.  

In the workers’ comp context, the existence of several red flags can indicate an exaggerated injury or even a potentially fraudulent claim. However, sometimes our judgment can be clouded by our desire for the business or sympathy for the person sitting in front of us, causing us to look past these warning signs. Identifying potential issues before agreeing to represent the (allegedly) injured worker can help you avoid seeing red later by evading a troublesome case with a dishonest client:

An inconsistent story – Be wary of any changes in your potential client’s story concerning how the injury occurred. A lack of detail (or conflicting details) should give you pause. Their description of the workplace accident should be clear and consistent.

Suspicious medical providers – If you have practiced in one jurisdiction long enough, you will likely encounter the same doctor or medical provider who has a history of treating suspect workers’ comp injuries. Or, the potential client’s refusal to submit to certain medical tests or treatment from another provider to confirm their injuries may be suspicious. Exaggerated pain or symptoms that seem inconsistent with the injury should warrant additional investigation before you take the case.

Familiarity with the claims process – A history of multiple workers’ comp claims or an unusual level of knowledge of the work comp process may suggest a pattern of fraudulent claims and should put you on red alert as you vet the potential client.

Employment history – Get a sense of any past workplace issues, including performance problems or disciplinary actions. Further, understanding when the accident occurred within their employment timeline, such as just before a layoff or their anticipated retirement date, is an important aspect of evaluating a potential client, their integrity, and intentions. 

While a single red flag may not mean a fraudulent claim, your thorough examination is necessary to determine the viability of the potential claim. Why is this so crucial? Not only do you want the firm to stay out of the red, it may be more difficult (or even impermissible) to withdraw from the case down the road. In addition to being mindful of these issues during the intake process, several ABA Model Rules are also implicated, including Rule 1.18 concerning client confidentiality. Keep in mind that if someone consults with you for the purpose of retaining your legal services, they are considered a “prospective client,” meaning that any information they disclose must remain confidential. The duty to maintain confidentiality is likewise required of any non-lawyer assistants, including your legal assistant or paralegal, who may be present during the intake process per Rule 5.3.

Even though you may feel well-equipped distinguishing a legitimate claim from a questionable one, keep these tips in mind to avoid being caught red-handed with a suspect claim or unsavory client.