Non-Engagement Letters Do Have Their Place

A question came in the other day concerning the value of non-engagement letters. You know the one. It’s that letter that says thanks for checking us out but we’re not able to take your case. Over the years I have found a real disparity among attorneys as to their willingness to use such a letter. Some religiously use them with each and every declination. Others just don’t see the need and haven’t written one in years. Perhaps somewhat surprisingly, I come down somewhere in the middle. As a risk manager, I certainly appreciate the value of these letters, but I will also admit that the number of claims attributable to the absence or presence of a non-engagement letter isn’t significant.

I frequently hear attorneys share, “If we have to write a letter every time someone says no around here, we’re never going to get any work done.” I don’t take issue with that because these letters are not about documenting that there is no attorney client relationship every time an attorney says “Thanks, but no thanks.” The real purpose of a non-engagement letter is to ensure and document that someone, usually a non-client, can’t come back and claim that they were relying on you to take some action on his or her legal matter after you verbally said no. In my mind, the decision to use a non-engagement letter with every single declination is properly viewed as overkill. I also view a decision to not use them at all as taking an unnecessary risk. The prudent practitioner who understands what these letters seek to accomplish will use them when called for.

Many attorneys don’t provide an opportunity for prospective clients to even entertain the thought that the attorney is considering taking on their legal matter. The initial conversation simply never gets that far. If a cold call comes into the office asking if the attorney handles divorces and the answer is “No, but thanks for calling” no one is going to view that circumstance as giving the caller the impression that the attorney was willing to look into their matter. I don’t see a strong need to follow up with a written letter in situations such as this. That said, if a prospective client gets as far as being able to drop documents off for review or actually does have a substantive discussion with an attorney about their legal issue, even if only over the phone or at a social function, then the math has changed for me.

As attorneys we sometimes too readily perceive a review of documents or a conversation with someone as our trying to decide whether we’re interested in the matter or we may simply view the interaction as extending a courtesy. In other words, we tend to naturally view these kinds of interactions as not creating any professional obligations. Unfortunately, it doesn’t matter what we think as attorneys because it isn’t about us. What matters is how the individual we’re interacting with is responding to the situation. What if the individual is responding to the interaction with a sense of relief now that they have had the opportunity to share their story with an attorney who they believe will look into their matter? What if this individual begins to rely on you for some unspoken and/or unclarified action? This is a problem that only documentation can resolve because, heaven forbid should a claim ever arise, in a word against word dispute you as the attorney will be in the weaker position.

Documentation doesn’t always mean that a formal letter needs to be written. There are going to be situations where a letter should not be written such as with the potential divorce client. You don’t want to unintentionally notify an unsuspecting spouse that a divorce is coming when that spouse happens to open an envelope from an attorney simply out of curiosity and yes this has happened. There may also be times where the prospective client refuses to provide an address fearing the receipt of a bill for the initial inquiry. In these situations a note written on a message slip or memo pad and kept in one’s miscellaneous advice file, which can be digital, may be all that is called for. On the other hand, if documents have been reviewed or a substantive discussion with the potential client has occurred, strongly consider sending a non-engagement letter. If more convenient, there is no reason why you can’t even hand deliver a non-engagement document at the conclusion of the initial consultation.

There is an important side note here. Be careful about falling into the trap of believing that a non-engagement letter will protect you from a malpractice claim if any legal advice was given during the initial consultation or even in the non-engagement letter itself. It won’t. If advice was given during an initial consultation or in the non-engagement letter, the letter will in essence limit your exposure to any advice given up to and/or included in the letter documenting the declination. So, if you pin down a statute of limitations date in a non-engagement letter, make certain that the date is correct. Malpractice carriers have incurred significant losses due to incorrectly calculated dates because the attorney failed to fully investigate the matter and an exception, such as the involvement of a governmental agency, was in play.

While I can appreciate that these letters are sometimes viewed as burdensome and the time spent writing them isn’t billable time, selective and appropriate use of the tool can and will reduce your risk to being successfully sued by a non-client. In the end that should make the effort worthwhile.

All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.

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4 comments on “Non-Engagement Letters Do Have Their Place

  • I agree! I don’t necessarily do the formal letter very often, but I *always* reply to emails of documents and note that we’re not attorney-client until an agreement is sealed, signed and delivered. I also won’t calculate any statutes of limitations on cases that I’m not taking — too dangerous! I tend to tell people sometimes, you can continue to handle this on your own, and you might do alright, totally up to you, but there’s a chance you’ll screw something up. If I sense that they absolutely need an attorney, although it’s not me, I try to tell them emphatically. If they aren’t in the email system, I enter it in my case management system that I told them that, just in case it ever comes up in the future.

    • This is an excellent article. I think that the rule of right reason is that if you have discussed the matter in detail during a consultation, then the letter is appropriate. If one does not send a letter, then the attorney should document the consultation in his file, especially noting if representation was offered, not offereded or declined.

  • I agree with Mr. Bassingthwaighte. I use non-engagement letters on occasion when I have had some sort of meaningful consultation with a person, but have not agreed to actually work on the case. Particularly when I get a bad vibe from the person and want to make very sure he or she knows that I am NOT their lawyer. I also stay away from any specific advice other than “find another lawyer and be aware of deadlines in your case.”

  • I’m an attorney, but my agency specializes in lawyers’ professional liability insurance. There are important risk management components involved in using a non-engagement letter.

    I use the following example of a real life case that took place in Minnesota:
    Consider the prospective client who mistakenly walks into a firm that exclusively practices environmental law. The potential client describes a clear case of medical malpractice. The attorney replies that as unfortunate as the situation is, the firm cannot help. The client interprets this to mean the claim has no merit. Sometime thereafter, the prospective client discovers that she had a multi-million dollar medmal claim – now moot because the statute of limitations has expired. She sues the environmental firm for legal malpractice.
    In that lone client meeting, no fee arrangements were discussed, no medical authorizations were requested, and no bill was sent for the consultation. The interviewing attorney made it clear the case was one the firm would not be interested in taking, and the client was encouraged to seek another attorney’s opinion. The client did not consult another attorney. The jury awarded $650,000 in damages.

    The whole mess could have been avoided through a simple form non-engagement letter.

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