Have clear rules of non-engagement

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Published on 10/8/07

This is the second of two parts. Part I appeared last week.

In last week's column, we discussed how a non-engagement letter can protect a lawyer against clients whose matter you have considered, but decline to accept. Sending a non-engagement letter should not be done rashly, but is definitely advisable for prospective clients who:

  • will not discuss or agree on fees, or who will not sign a fee agreement or pay a retainer;

  • insist that their matter is "life and death," demanding your full attention;

  • use pressure tactics to urge that their matter be handled first once the engagement begins;

  • demonstrate a bad attitude toward lawyers and the judicial system; or

  • cannot articulate what they want you to achieve.

A lawyer can only provide services successfully by understanding the intent and desires and wants of the client. If clients don't recognize the benefits or accept the realities of what can be done, they will become dissatisfied. That's when it's best to send a non-engagement letter, conveying a message along these lines:

You have contacted my firm and requested that I evaluate whether I will represent you. After discussion with you, I have reviewed your matter and conclude that I am unable to represent you in this matter at this time. I recommend that you immediately contact another attorney for assistance if you wish to pursue your matter. If you do not have another attorney in mind, I suggest you call the referral service of the local bar association, which maintains a list of lawyers who may be able to handle your case.

In declining to undertake this matter, I am not expressing an opinion on whether you will prevail if you pursue your matter. You should not refrain from seeking legal assistance from another attorney because I am unable to represent you in this matter. Please contact another attorney of your choice.

I am not charging you for any legal fees or expenses on this matter at this time. My policy is to charge for evaluating cases only when I express an opinion on the merits of the case to the client. Since I am not doing so here, I am not charging you.

Satisfying a client is the minimum threshold of a legal services relationship. If the lawyer does not accomplish the results that the client wants and expects, the relationship goes nowhere.

When a client becomes dissatisfied (and threatens a malpractice action), typically the law firms didn't effectively communicate whether it could meet what the client wanted. The lawyer did not explain at the outset of the engagement what kind of performance was reasonable for the client to expect.

When clients don't get what they want their reaction is often anger. And a law firm with angry clients is one doomed to failure.

It's far better to be open and honest about what you can and cannot do. A non-engagement letter may be the best option to accomplish this.

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