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Being Sued by Upwork Client

browersr
Community Guru
Scott B Member Since: Nov 20, 2015
11 of 20

It's hard to fully reply here since the actual details of the conversations were not fully described and sort of metered out in different posts. So much of this, in my opinion, comes down to how things were communicated between you and the client.

 

There isn't anyone here who would suggest that you should not have informed the client that his project was not viable. No one has suggested that, so it's safe to assume that all agree. The notion of "fraud" is also thrown out the second you communicated the specific issue to the client and they acknowledge your message. 

 

What isn't clear again is the exact messaging around all of this. It's also not clear if the work of the first milestone can be used by someone else or if it has to be redone. If the client, having been properly notified of the issue, still wished to continue and the cost of you not continuing with the contract is lost work/investment, then I certainly understand why the client may be upset. I have absolutely no idea why a client would choose to continue in the face of seemingly overwhelming evidence of the grant requests impending failure; however, they may have their reasons of which they are entitled not to share. 

 

Having said the above, and what adds to the complexity here is the notion of your reputation. You seem to suggest that continuing with the work, even having provided full disclosure, could some how damage you within the community of grant writing professionals. If that is truly the case then I would certainly think you have the right not to continue even at the client's request. But, and these leads me to my last point...

 

I would strongly suggest you indicate your "rules" upfront to any client whom you are doing this sort of work. Something that is illegal certainly doesn't need to be called out, but that is not the case here. It would seem important from my view that you tell the client, before any work commences, that if you run across anything that would make it impossible for the grant to be won, that you would disclose this to the client and seek contract termination. Tell them your reasons why as well so that there is a complete understanding. Then there will be no excuses should the issue arise.

 

 

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
12 of 20

Well, you were under contract to complete the process.

 

The right thing to do (and the one that complied with your contract obligations) would have been to bring the issue to the client's attention and PROPOSE terminating the contract.

 

But, it doesn't sound like you did that. It sounds like you opted to unilaterally breach the contract instead.

 

If, in fact, the milestone paid didn't include any of the work specifically done on the grant application, then your argument holds water and they'll likely have trouble establishing damages, even though you clearly breached the contract. It's unfortunate that your communications with the client deteriorated so completely that it sounds like you'll have to go to court to establish that.

bobafett999
Community Guru
Prashant P Member Since: Sep 29, 2015
13 of 20

@Kara:  No matter what others say I applaud you.  Mis-representation in grant writing and collecting money under false pretense is not that uncommon. I believe the larger issue might be if this was found later after the grant was awarded and you being the party of the whole process could be considered as an accomplish.

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
14 of 20

Prashant, "no matter what others say" is a bit offensive and misleading in this context, since I'm the only other person who has responded here, and I absolutely never suggested that Kara should have tricked the client and continued work.

 

I'm all for professional integrity and honesty. I'm just also for managing contracts professionally and fulfilling legal obligations and that sort of thing. 

bobafett999
Community Guru
Prashant P Member Since: Sep 29, 2015
15 of 20

@Tiffany S wrote:

Prashant, "no matter what others say" is a bit offensive and misleading in this context, since I'm the only other person who has responded here, and I absolutely never suggested that Kara should have tricked the client and continued work.

 

I'm all for professional integrity and honesty. I'm just also for managing contracts professionally and fulfilling legal obligations and that sort of thing. 


 Tiffany:  My apologies.  I did not mean to direct that comment specifically to you.  I meant to convey that contract or no contract I applaud her decision.  And I am sure it was not a light decision.  Kara knew it very well that client's bad feedback will be on her profile for eons.

r2streu
Community Guru
Randall S Member Since: Mar 20, 2017
16 of 20

This feels like a bit of a rock and a hard place scenario. 

 

My understanding of the situation, and please correct me if I'm wrong, is as follows:
1. The client asked for a grant proposal to some specific grants, toward which end the Freelancer began working. 

2. As part of her research on the grant in question, and on the company itself to (I assume) better serve her client in writing the proposal, she discovered that the client was attempting to get a grant that was inappropriate for their actual current situation. 

3. The Freelancer, whose expertise is in grant writing, then researched other, more appropriate grants for which the client could potentially be eligible. 

4. The Freelancer, in good faith, presented these findings to the client, and informed them that while the current grant proposal would not work for them (and that they'd end up paying a lot of money for something that would inevitably produce a bad result), they could INSTEAD try for the other, more appropriate grants.

5. Rather than switch gears and apply for the appropriate grants, the CLIENT chose to end the contract. 

 

This does not sound to me like the freelancer unilaterally chose to breach the contract, but performed her due dilligance as an expert on such grants and sought to provide her clients with better service than what they'd asked of her (ie, she took the time to research the grants and found more appropriate means of funding).

 

Giving the client the benefit of the doubt, it's possible they were simply either unwilling to change tack and move forward with a plan that differed from their original, or that they were frankly embarrassed to have missed such an obvious problem before attempting to draft a grant proposal. Either way, their response seems, to me, to have been far less than appropriate or professional. 

 

If they had information other than what she found that would make them eligible for the first grant, they COULD have simply sent her that information (which she asked for, and which, in order to draft a grant proposal, I assume would be very important for her to have gotten from them in the first place). 

If, in fact, the information gathered during the freelancer's research stage was completely accurate, the right move from the client's perspective would have been to ask questions and find out more about the more appropriate funding avenues the freelancer had pointed out. 

 

But if everything the freelancer says is the truth, I believe she acted ethically and appropriately to the situation, and is not out of bounds in not returning the initial payments made for the research she needed to do. 

The information she found was not only NOT none of her business, it was, in fact, entirely her business, as she is a grant writer and understands the ins and outs of that sector more than the client does. She didn't decieve the client. She didn't waste their time -- in fact, if her story is accurate, she SAVED them time AND money. Had the client gone with another provider who had simply prepared the grant proposal as requested, they would have spent the entire budget on what would ultimately have ended up as a completely worthless project. 

 

So, we come to the rock and the hard place. 

 

As an ethical person who values her clients' time and money, she was faced with the choice of, A, presenting the information she discovered and recommending a change of course 
or, B, ignoring the facts and completing the letter of her contract. 

As to the matter of being sued, is it not also true that had she gone with option B, she could be liable (and in fact sued) for negligence once the proposal was turned down due to the clients' ineligibility? (I'm really asking here, because it definitely seems like, as a professional grant writer, she could easily be held accountable for NOT taking the clients' eligibility into consideration.)

r2streu
Community Guru
Randall S Member Since: Mar 20, 2017
17 of 20

TL;DR version:

If I'm on a jury, and the question is asked, "after discovering Plaintiff's ineligibility for the grant in question, was the defendent obligated to inform them before continuing work..." My answer is YES. 

tlsanders
Community Guru
Tiffany S Member Since: Jan 15, 2016
18 of 20

@Randy S wrote:

TL;DR version:

If I'm on a jury, and the question is asked, "after discovering Plaintiff's ineligibility for the grant in question, was the defendent obligated to inform them before continuing work..." My answer is YES. 


 But, this case would never be before a jury. And, the question you framed here would never be part of the analysis.

tlbp
Community Guru
Tonya P Member Since: Nov 26, 2015
19 of 20

Fraud is difficult to prove absent intent. The unclean hands doctrine would come into play. Listen to your actual lawyer. Remember too, that many of your rights and obligations are dictated by the Upwork TOS that both parties agreed to. Make sure your attorney is aware of the TOS and its contents. The client is probably threatening CA small claims in an effort to force a default judgment as it is unlikely you would appear in CA. Let your attorney wrangle that. Be cautious about disclosing any information learned about the client to anyone other than your attorney, the TOS has confidentiality requirements. 

a_lipsey
Community Guru
Amanda L Member Since: Jan 23, 2018
20 of 20

I see this problem happen all to often with for profit companies who think they are eligible for grant funds. Grant funds are generally only for nonprofits or for research purposes. You can't just get one for being a start up. You did nothing wrong. You SAVED the client a huge amount of money. Also, for others who have asked, the work she put in would absolutely been usable by another grant writer if they had chosen to engage another person to do the work. The milestones were the preparation of sections of the grant proposal narrative, which you can absolutely take from one person and use to complete the proposal. I work with grant proposals with a team of people, one person alone doesn't have to do the work. 

 

This is also why I thoroughly vet my clients before accepting the job. If they won't show me their incorporation documents, I pull them myself to make sure they are actually eligible for the grant before doing any work for them. On another platform, I had a similar issue with a client who wanted a grant from the Department of Commerce, and he wasn't eligible, so I declined the job. He began to harrass me through the platform because he was angry that I didn't want to take on his job. I'm glad I turned it down because if I had taken it on and submitted it anyway for him, and he got rejected, I bet he would have taken me to court, lol. 

 

You did nothing wrong, but this is a good lesson in holding out on starting a project before the client is fully vetted. 

 

As a grant writer, I understand what you mean by having a reputation to keep as being ethical, and submitting an application that will be thrown out immediately when they review eligibility, which is the first thing they will do, is unethical. It's certainly one thing to work on a proposal for a client if you feel it's uncompetitive and another entirely if they are not even eligible for the funding.

 

I don't think any judge with an ounce of common sense would find you at fault for your actions. Also, for those saying breach of contract, I feel like the client misrepresented themselves, so in a way committing fraud, so the TOS and breach of contract seems moot to me. If she asked them if they were eligible, and they said yes, and then later she signs a contract on that basis, and later finds that they misrepresented themselves as eligible when they are not, isn't that fraud?

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