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Dealing with troublemaking clients
Thread poster: Narasimhan Raghavan

Narasimhan Raghavan  Identity Verified
Local time: 23:05
English to Tamil
+ ...
Jan 16, 2006

It all started with an email dated 14.01.2006 addressed to me by Sabine having profile http://www.proz.com/pro/131231

She was put out by the antics of a translation agency based in India dragging its feet regarding payment to her for a very rush job she carried out for the agency. I gave her some advice to the best of my ability. On my suggestion she opened a forum topic in the German section vide http://www.proz.com/topic/41335

Among other things I suggested that she post another topic in English so as to reach a wider audience. And then I started thinking as to why I should not open the topic myself. After all Sabine saw fit to address me first and I am touched by her faith in me. Here I am.

Brief summary of the case:

1. Sabine did a translation for an agency based in India. The agency was not forthcoming about payment except to say that Paypal does not function or similar.
2. She googled the agency's name and got an Indian telephone number. But it was not in operation.
3. Fearing some cheating on the part of the agency, she contacted the end client in Germany to find out whether the translation was OK. She got a positive feedback.
4. Now the agency had objected to her directly contacting the end client and demanedd she fax them a statement owning up that she acted unethically.
5. It was at this juncture that Sabine contacted me as she saw that I belong to India and I speak German. She wanted to know whether she violated any Indian law.
6. As the first mail from Sabine did not give full facts (I am not blaming her as she was in an agitated mood and hence the omission), I suggested that she acted a little unethically as contacting the end client is frowned upon not only in India but elsewhere as well. And I suggested that she put up a topic in German forum to get more (second) opinion.
7. Sabine sent another mail giving me full facts. In the light of this letter it was clear that her action was justified under special circumstances and I said so clearly. I repeated my suggestion that she post a new topic and to make entry in the Blueboard regarding the agency.
8. Sabine thanked me for the suggestion and asked whether she could include my mails in her post, whereupon I suggested that I will be willing to give them as my own comments in the topic to be posted by her.
9. Accordingly the topic was posted and I gave a chronological account of the emails exchanged between us.
10. The initial comments from German colleagues said that contacting the end client directly is a big no-no. But after Sabine gave the full facts the opinion slowly veered to her viewpoint.

Now a few new comments from me.

Sabine did one mistake. She believed the agency in a child-like manner. As Harry Bornemann rightly pointed out her action was not unethical but was tactless. But Sabine has now reported that the agency has since then expressed willingness to pay two thirds the invoice amount.

I see that the majority of German colleagues having commented in the German posting have English as well and I hope that they comment here too. Especially Ralf Lemster in both the fora. I am sure he will give very sober and practical advice.

Regards,
N.Raghavan


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Andy Lemminger  Identity Verified
Canada
Local time: 10:35
Member (2002)
English to German
Ethics Jan 16, 2006

Of course it is not correct to contact the end client no matter what your agreement with the agency was. Every translator knows that fact.

Nevertheless this is an ethical question.

Contacting an end-client will only have legal consequences if the translator signed an agreement not allowing him to contact the end client and accepting certain (financial) penalties in case of a violation.
For Sabine this is the only legal problem she might face. Indian law is not the issue here because Sabine doesn't live in India.
If she hasn't signed such an agreement she will be fine and should definitely not sign any other statements that might cause trouble.

Looking at the ethical background the agency obviously is not in a position to claim ethical behaviour on Sabine's part because it hasn't paid.
To get back to the first sentence:
Of course it is not correct to refuse a translator's payment without any cause. And yes: Every agency knows that fact.

So despite all the indignation caused on part of the agency it is very obvious who initially could have prevented this dispute.

My personal opinion: I think it is very good that nowadays translators can do something if they are not getting paid and it is even better if they have the guts to carry it through.

Andy

www.interlations.com


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Narasimhan Raghavan  Identity Verified
Local time: 23:05
English to Tamil
+ ...
TOPIC STARTER
Thanks Andy Jan 16, 2006

Harry Bornemann has given a wonderful suggestion in the German forum. Sabine had reported that since then the agency in question has come down to give two thirds payment. She is rightly insisting on full payment.

It is here that Bornemann comes out with a beautiful suggestion. He says:

"Eine Erklärung über "unethisches Verhalten" würde ich daher auf keinen Fall unterschreiben, aber ein ganz gewöhnliches Non Disclosure Agreement für 1-2 Jahre und diesen Endkunden könntest du der Agentur (nach vorheriger Absprache) ruhig schicken, damit sie keinerlei Grund oder Vorwand mehr hat, einen Teil des Geldes einzubehalten.

Wenn sie es dann doch grundlos einbehalten sollte, würde ich den fehlenden Betrag als einmalige Vergütung für die Vermittlung eines Endkunden betrachten und versuchen, in Zukunft direkt für ihn zu arbeiten.
Auf diese Weise könntest du vielleicht sogar noch ein besseres Geschäft machen, als wenn die Agentur ihrer Zahlungsverpflichtung vollständig nachkommen würde..

Diesen Standpunkt würde ich der Agentur mitteilen, damit sie sich die Alternative aussuchen kann, die sie bevorzugt."

It consists of 3 parts.

1. Sabine is not to sign any declaration about unethical action on her part. She could however sign a non disclosure agreement and agree in writing not to take any work from the end client for a period of say 1 to 2 years. The agency should be satisfied with this and release the full payment.
2. If it still withholds one third payment, Sabine should consider this as one-time payment for getting a client's details and coolly start taking up direct work from the end client.
3. She should tell the agency about this and it will be up to the agency to opt for NDA or lose the end client to Sabine.

Any bet on the way the agency is going to decide? I forget; if the agency holds back one third payment nothing prevents Sabine from reporting the matter to the blueboard either.

Regards,
N.Raghavan


[Edited at 2006-01-16 09:14]


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Ralf Lemster  Identity Verified
Germany
Local time: 18:35
English to German
+ ...
Accepting jobs without sufficient details Jan 16, 2006

Thanks, Narasimhan,
I didn't respond in the German forum thread, but I gave Sabine my views privately.

I see the key of the problem in accepting jobs without sufficient contact details. When accepting work from unknown customers via the internet, it's essential to ensure you know who you're dealing with, and to find out about their business practices - keep your hands off if you don't.

Best regards,
Ralf


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Catherine Brix
Local time: 18:35
Swedish to English
+ ...
Go Sabine! Jan 16, 2006

I'm going to agree with Andy and express my admiration for someone who has the guts to stand up for herself. Agencies are becoming more trouble than they are worth. The Blue Board is certainly an option for pointing out non payers, low payers and late payers. Agencies can however counter with a cute "Thanks for bringing this to our attention, we will do our best...." when in fact they have no intention of bettering their ways. Ends up being highly misleading and works in favor of an undeserving agency.
Sabine should not sign anything. Obviously, this is an agency she should dump faster than fast. Let's remember folks, the agencies make their living off us and our skills. They are nothing without us. They press rates paid to us while raising rates charged to end clients. Then they lie to the translators, delay payment and threaten legal action. Come on!
I think it's time that agencies get what they pay for. They make you work for peanuts give them gibberish. The ones that pay well should get high-quality work. Hopefully, agencies that exploit translators with no regard for quality will go bankrupt,leaving room for more professional agencies who know that quality and price do actually go hand-in-hand. A translator who receives compensation for his/her time can spend time doing a good job. A poorly compensated translator on the other hand has to do double/three times as much work to make a living and hasn't the time or capacity to do quality work.
As for contacting the end client. Hey, Sabine's in business. She isn't doing this work for charity. She didn't get paid. She has a right to ascertain the reason and if the agency doesn't communicate with her, then she has an obligation as a business person to her own business to find out if her product is of poor quality and undeserving of payment or not. She contacted the agency, the agency didn't extend the same courtesy to her. Again, come on people. She's in business. If an agency is cheating her, she needs to know and take legal action herself. She does not have to turn tail and run. She should not sign anything where she agrees to any form of liability or wrong doing. Sabine has done nothing wrong.

So Sabine, I tip my hat to you and wish you luck. I hope you get full payment. In a perfect world, you would also be able to charge them interest on delayed payment - much like the phone company, power company, banks, and everyone else...Hang 'em out, and hang 'em high and let's hope they go belly up ASAP.

Go girl!
Catherine


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Ford Prefect  Identity Verified
Burkina Faso
Local time: 17:35
German to English
+ ...
Non disclosure and contracts Jan 16, 2006

I would agree with all of the very sensible comments made so far, especially Harry Bornemann's suggestions, and Ralf's suggestion to get full contact details.

I get pretty frequent email contact from people purporting to be agents but using @yahoo or @hotmail addresses and no further details. I always ask these people to fax me their address and phone number, with their letterhead (a 1-minute job) before I accept work and they all go silent. Maybe I lose a lot of work this way, but why would I want to work with people who don't come up to some minimum standard of business honesty?

The agent's failure to fulfil the contract by paying for the work done effectively invalidates their right to enforce the agreement. This means that the translator, having made a reasonable effort to secure payment and allowed reasonable time for this to happen, is not acting unethically by contacting the end client since the agent is the party who is in breach of contract.

The way the law handles circumstances in which party A first breaches a contract and party B then has no option but to likewise breach the contract in order to enforce party A's obligations is handled differently in each country, and complicated by the international nature of the transaction. Suffice to say, even if the parties agreed to use the German courts to govern the contract, a judgement in Germany would be next to useless in India, and Sabine would need to obtain judgement in India to have any realistic prospect of obtaining payment through the courts.

The fact that the translator has had to take extraordinary action in no way permits the agent to reduce the charge or insist on stupid documents being signed (I take the liberty of assuming that India's legal system still bears considerable similarity to the English system). In any case, the NDO will forbid contact with the client without the agent's permission rather than under any and all circumstances - and if the agent's phone was dead, well the contractor did their best to seek permission but failed because the agent was not contactable!

Contacting the end client can make sense in these cases as the translator initially owns copyright in the work they have produced - usually these rights are sold to the agent and then sold on to the end client. In the event of non-payment, the translator can at least inform the client that, even if they have paid the agent, the rights to the work are not the agent's to sell, and thus the client is not entitled to make use of the work until the orginal holder of those rights has been paid the amount agreed. This means rather than pay twice or risk being sued for breach of copyright, the client may actually pressure the agent into paying the contractor.

It's a long shot, but if your agent is dishonest, what else can you do?


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Narasimhan Raghavan  Identity Verified
Local time: 23:05
English to Tamil
+ ...
TOPIC STARTER
You are quite right James Jan 16, 2006

[quote]James Visanji DipTrans PhD wrote:

"Maybe I lose a lot of work this way, but why would I want to work with people who don't come up to some minimum standard of business honesty?"

Actually you are only losing a chance to be cheated. A very desirable loss indeed.

"(I take the liberty of assuming that India's legal system still bears considerable similarity to the English system)."

India follows the Anglo-Saxon jurisprudence, having been a British colony till 1947.

"Contacting the end client can make sense in these cases as the translator initially owns copyright in the work they have produced - usually these rights are sold to the agent and then sold on to the end client. In the event of non-payment, the translator can at least inform the client that, even if they have paid the agent, the rights to the work are not the agent's to sell, and thus the client is not entitled to make use of the work until the orginal holder of those rights has been paid the amount agreed. This means rather than pay twice or risk being sued for breach of copyright, the client may actually pressure the agent into paying the contractor."

Quite a useful suggestion, especially if the end client is concious of his reputation. And in the bargain he will give further work elsewhere if not to Sabine and definitely not to the original agency.

Regards,
N.Raghavan


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milo1
Local time: 18:35
English to German
+ ...
his explanation only paying 2/3 of the total amount Jan 16, 2006

Hi

Thank you all responding in such a supportive way

2/3 of the total amount he owe me arrived this morning. And he left the following message:

"Ms. Sabine, I have transferred 100.00 USD. This money I have paid you from my end. I really if my clients will ever pay us. As I told you my clients have taken a very hard view on the entire thing. I do not know about incomplete contact date and all. Tell me where you found such things. I would still suggest you send an apology or regret letter for contacting my client's client and that you will not contact any further. Once my client receives it I shall have the balance sent to you. Regards"

I answered:
Mister _______, I can send you a confirmation not contacting the customer for any translation work.
Your client in India, is it a translation agency?
Please explain me why your client is insiting on an apology.


regards
Sabine

[Edited at 2006-01-18 20:31]


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Narasimhan Raghavan  Identity Verified
Local time: 23:05
English to Tamil
+ ...
TOPIC STARTER
Did you actually receive the money? Jan 16, 2006

Hope the abovementioned money transfer really took place. Once that is secured you can make it clear to the agency that you will not contact the end client for translation work directly if and only if the remaining one third money is sent to you. Further, I would suggest the following draft for you to study and send to the agency duly signed, if agreeable to you. Here goes:

Sir,

I am sorry that things have actually taken this turn. Had I been able to communicate with you I wouldn't have done so. But it has happened. I regret the distress it caused in you.

Having said that I hereby give an undertaking that I will not contact the end-client directly for a period of one year for any translatin work.

However, this is applicable provided you clear my remaining payment within 5 working days. Failing which I will no longer be controlled by this conditional undertaking and what is more, I will include your name in the Blueboard maintained by Proz.com.

Yours etc.

Regards,
N.Raghavan



[Edited at 2006-01-16 15:24]


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milo1
Local time: 18:35
English to German
+ ...
a usefull letter Jan 16, 2006

Narasimhan, thank you very for this proposition. The receipt of payment has been definetively confirmed by the online provider, money is on the way to Switzerland.

have a nice day
Sabine


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Dinny  Identity Verified
Greece
Local time: 19:35
Italian to Danish
+ ...
Contacting the end client is a must in this case! Jan 16, 2006

I inform all my clients that copyright of any translation belongs to me till payment has taken place. Obviously. It it my creation and if you don't pay it still belongs to me.

Therefore it would in any case be correct to contact the end client in case of a non-payment to inform that he unfortunately shall not be able to make use of the translation since payment has not taken place.

It has actually only happened to me once, recently, to be forced to take this action. Naturally, the non-paying agency was VERY upset about me contacting the end client, but nevertheless my lawyer confirmed that I had done right and that he would follow up by registered mail to the end client.

Agencies could avoid all this trouble if only they considered their payment deadlines as important as the translation delivery deadlines.

Dinny


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Susana Galilea  Identity Verified
United States
Local time: 11:35
English to Spanish
+ ...
About contacting the end client Jan 16, 2006

I opened a similar thread not long ago, and the advice I received led me to think it was not such a straightforward proposition. Thought I would share it here: http://www.proz.com/topic/37848

I am now pursuing legal action against the non-paying parties, but have not made a decision regarding contacting the end client. Any additional feedback will be appreciated.

All best,

Susana


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xxxBrandis
Local time: 18:35
English to German
+ ...
the next time a proz member might say Jan 16, 2006

Hello Raghavan,

he/she has a collection agent through you. Did you think of this. Being an engg. you are actually in a position to exercise
almost any profession. Apparently neither proz.moderation or the site management are not a position to justify the given instance. you could actually get your colleage legel support, believed everything had functioned in good belief and trust during the project. If yes,I might have a range of cases. Best regards, Brandis

[Edited at 2006-01-16 19:30]


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Fred Neild  Identity Verified
English to Spanish
+ ...
Legal basis Jan 16, 2006

Susana Galilea wrote:
Any additional feedback will be appreciated.

All best,

Susana



Hi Susana,
I agree with Dinny. In some specific cases it is possible.

I had a situation where the intermediary tried to outsmart me cancelling the job after it was delivered due to low quality (into Spanish) alleged by his client. The problem for the intermediary was that this was a translation for a site. So, I entered the site, I verified my translation was published with insignificant changes (more due to style than anything else), and I contacted the end client to warn him that I was preparing myself to sue him, along with the intermediary, and I would even request the server to shut down his site because it included my translation that had not been paid for, at least this is the basic idea of the story. I had printed the webpages and had taken other precautions. The intermediary got very angry with me, but he paid immediately. Of course, this was easier because all of us were in the same country, so my threats were easily enforceable.

If you have legal basis, you should contact the end client. I don't think it has to do with ethics in some cases.

Business is business.

Fred


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Narasimhan Raghavan  Identity Verified
Local time: 23:05
English to Tamil
+ ...
TOPIC STARTER
Am I supposed to take it as compliment? Jan 17, 2006

Enough of heavy stuff. Some levity is called for to clear the atmosphere.

Am I supposed to take your remark as compliment? If so, thanks very much. Collection agent? No thank you sir. Especially in the present case I am in Chennnai and the agency is more than 1000 kilometers away.

Have a nice day.

Regards,
N.Raghavan
Brandis wrote:

Hello Raghavan,

he/she has a collection agent through you. Did you think of this. Being an engg. you are actually in a position to exercise
almost any profession. Apparently neither proz.moderation or the site management are not a position to justify the given instance. you could actually get your colleage legel support, believed everything had functioned in good belief and trust during the project. If yes,I might have a range of cases. Best regards, Brandis

[Edited at 2006-01-16 19:30]


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