Small Law Firms, Solo Practitioners

If You Don’t Nickel And Dime Your Clients, You Won’t Have To Sue When They Complain About You Online

A wedding photographer won a million-dollar claim from her clients. It probably should never have gotten this far.

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Last week’s big news story about a wedding photographer who prevailed in her one-million-dollar defamation action against her former clients — newlyweds who’d complained about the photographer’s refusal to release wedding photos after the clients failed to pay a $125 charge — offers many lessons for service providers, including lawyers.

Trouble is, most lawyers miss the point of this story. They universally side with the photographer, virtually high-fiving her for winning a victory for every service provider, including lawyers who’ve had to deal with P.I.T.A. clients, but fail to consider what the photographer could have done differently to avoid this debacle to begin. Plenty, in my view.

Before I explain my perspective, here’s the back story. The couple, Andrew and Neely Moldovan retained Dallas-based photographer Andrea Polito to photograph their wedding and paid her $6000 (the payment isn’t something mentioned in most of the news stories but I’ve not seen it disputed). After the wedding, Polito sent the Moldovans the proofs to review in order to select the photos for their wedding album. When the couple submitted their selection, Polito informed them that they would have to pay an additional $125 charge for the album cover, which was purportedly in the contract (this is a disputed fact, as the Moldovans claim they didn’t know about it). The Moldovans refused to pay the extra amount on principle, and as a result, Polito wouldn’t prepare the album. This in turn lead to the final photos being withheld — since Polito’s standard policy, common among many wedding photographers, was to hold the final photos until the album was complete.

Polito’s refusal to release the photos is what spurred the bride — a blogger with a significant social media following — to air her complaints online and eventually shop the story to NBC, claiming that Polito was holding the photos hostage. Polito declined to appear on the television segment, but provided a copy of her letter as a response, claiming that she had eventually made efforts to accommodate the bride by waiving the $125 charge and releasing the pictures. By that time, however, it was too late — Polito’s reputation had been damaged and the couple continued to harass her — which resulted in the lawsuit and the verdict.

Most folks argue that if the couple had just paid the $125 charge, none of this would have happened. But I put the blame squarely on Polito: as the service provider, she should have acted as the grownup and waived the $125 charge the minute the couple complained.

When a client pays a $6000 bill, foregoing or no charging  a fee that amounts to tiny percentage of the overall bill is good customer service. Moreover, even if Polito refused to waive the fee, she shouldn’t have suspended preparation of the album while the dispute was ongoing, knowing that the suspension would prevent the release of the final photos. There’s no reason why Polito couldn’t have moved forward with the album, released the photos and sued the bride after the fact. Polito shouldn’t have employed the equivalent of the nuclear option in the wedding world — i.e., refusing to release photos — all because of a $125 charge.

Of course, lawyers being lawyers insist that Polito had a contract that disclosed the extra fees. Because the newlyweds knew about the fees upfront, the couple shouldn’t get a pass. After all, a contract is a contract — offer, acceptance, consideration and all that good stuff.

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But what lawyers need to understand is that this is one of those situations where law and sound business practice diverge. If the couple didn’t recall agreeing to a $125 surcharge, the problem lies not with their memory, but in Polito’s contract. Think about it. A wedding couple excited and frantic about the big day (or a client, worried and fearful about a criminal charge or a divorce) come to the photographer’s studio (or lawyer’s office) looking for a solution. They’re informed of a $6000 (or $15,000) fee and handed a lengthy agreement that lists extraneous charges buried within the text. What do you think clients are going to remember in that situation — the enormous cost obligation just thrown at them, or the minutia of a lengthy policy that may sound like jibberish to emotionally-charged and distracted clients? The solution for lawyers is simple: make life easy for clients and stop nickel-and-diming for little fees and just charge a flat fee or hourly rate that’s sufficient to include all the flotsam and jetsam that’s part of every legal matter.

Believe it or not, ultimately, Polito got lucky that her former clients were hellbent on revenge — because it appears that’s what lead the jury to adopt Polito’s side of the story and award a verdict and damages in her favor. But imagine if the couple — instead of launching a smear campaign against Polito on social media — had paid Polito’s $125 fee and then posted a comment like this on Yelp, Google, and other review sites:

We used this photographer on our wedding day. Her photos were decent enough for the amount that we paid — but even after paying $6000 up front, she wouldn’t prepare our album or release our photos until we paid another $125 fee that was never included in the contract. Even after efforts to explain our side to us, she wouldn’t budge. Really, whatever happened to “the customer is always right?” Anyway, after two weeks, when she still wouldn’t change her mind over a silly $125 charge, we just gave in and paid the money to get it over with. Working with a wedding photographer should not be a stressful experience — but it is if you are nickel-and-dimed for every cost, as was our experience. I would definitely advise that you use someone else.

This kind of review is virtually defamation-proof. Granted, it wouldn’t have attracted headlines — but I can guarantee that it would have led many potential clients to think twice about using the photographer’s service. Had the Moldovans written that review, Polito wouldn’t have had a defamation claim — but still would have suffered a loss of business.

In other words, lawyers can’t assume, based on this case, that defamation law will protect them against harsh reviews. Polito’s case, which will likely be appealed, is the exception and not the rule. As clients grow increasingly reliant on online reviews, they too will post reviews that are informational rather than inflammatory — even though that information may still cause harm. Lawyers with client-unfriendly policies who think that they can rest easy are bound to be very surprised if they believe that lawsuits are the solution.

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So the next time a client balks about an $800 fee for travel time to and from the court in a case that netted your firm $80,000, think long and hard before you pull out your 23-page retainer agreement and cite the specific page and paragraph number where the client was notified about these charges. Is that extra $800 worth the long-term cost of a poor online review? And if you believe that it is, do you really want to have to spend thousands of dollars and hours on a lawsuit after the client posts a lousy online review?

Carolyn ElefantCarolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.comor follow her on Twitter at @carolynelefant.

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