How to Stop Having to Write and Send Declination Letters
Declination letters, also referred to as non-engagement letters, are those letters that say, “thanks, but no.” Some lawyers use them religiously and others not so much. Those in the not-so-much crowd apparently just don’t see the need and the excuses vary. Such letters may be viewed as unwarranted in most matters, irrelevant, or not cost-effective in terms of the necessary time and energy to prepare. If you count yourself as a proud member of the not-so-much crowd, you need to hear that those excuses are just that, excuses. Declination letters have their place as an effective risk management tool. As such, they should never be dismissed out of hand because the failure to write and send one of these letters can pave the way for a viable malpractice claim.
While I will readily admit that the number of malpractice claims that arise as the result of a failure to write and send out a declination letter isn’t large, this doesn’t mean we never see them. We certainly do. Sometimes these claims are the result of a missed conflict of interest. In short, the creation of a declination letter was what normally would trigger the entering of the name of a declined client into the conflict database. No letter, no name entry, no memory, and no hit when a name search is eventually run. Whoops.
More frequently, the claim involves an allegation of failing to move a matter forward in some fashion. Most concerning are the times when the claim is made after a statute of limitations date has run. Of course, the subject lawyer will always state there was never any obligation to do anything further and the prospective client will always claim otherwise. Here’s the problem. If the lawyer is unable to provide documentation that an attorney-client relationship never was established, which is exactly what declination letters do, this lawyer will be facing an uphill battle.
Clearly declination letters have their place; but I get the hassle factor in writing and sending these things out. Here’s the good news. Declinations can be documented in another more efficient way. The letter approach isn’t the only option.
Lawyers often use a client intake form during the initial consultation. If you do so as well, consider making a few modifications to this form that will allow you to use it to conveniently document an engagement or declination. At the conclusion of the initial consultation, give the prospective client a copy of the client intake form, and then you and your prospective client will sign both the copy and the original. If you and your prospective client decide to create an attorney-client relationship, you will also have the client sign a fee agreement. This process will leave the client with a copy of the client intake form and the written fee agreement. If you decide to not form an attorney-client relationship at the conclusion of the initial consultation, the prospective client will sign only the original and copy of the client intake form and receive a copy of that document only.
In order to use your client intake form as the method of documenting the engagement or declination, you might add to the beginning of your form something along the lines of:
The purpose of our initial consultation meeting is for me to determine what legal services (if any) our firm might be able to provide to address your legal concerns, as well as to provide an indication as to what your cost might be if you decide to hire our firm.
Our initial consultation meeting will not give us enough time or allow me to gather enough information to enable me to provide you with a definite legal opinion. The brief time allotted for this meeting makes it impossible for me to assess any legal matter you might have fully and accurately.
Regardless of whether you and I create an attorney-client relationship today, the attorney-client privilege protects all information that I gather during this meeting and record on this client intake form. Rest assured that I will hold that information in strict confidence.
And then at the end of the client intake form, you would add something similar to the following:
Please Read Carefully and Sign Below
Now that we have concluded our initial consultation, if you agree to hire me as your attorney and I agree to represent you, we will both sign a Contract for Legal Services. That Contract will state the terms and conditions under which this firm will provide you with legal representation.
If I am willing to represent you and you decide not to sign a Contract for Legal Services today, I strongly urge you to do one of two things: (1) schedule a follow-up appointment with me at the earliest possible time; or (2) immediately consult with another attorney in order to ensure that you fully protect your legal rights. Unless and until both of us sign a Contract for Legal Services, neither I nor this firm represent you on the matters described in this client intake form or discussed during this initial consultation. No action of any kind will be taken on your behalf until you authorize us to do so by our both signing a Contract for Legal Services.
If I do not agree to represent you, then we have not formed an attorney-client relationship, even though we had this initial consultation. Neither this firm nor I will represent you on the matters set forth in this client intake form or discussed during this initial consultation. If your legal matter involves a potential lawsuit, it is important that you realize you must file your lawsuit within a certain period of time, known as a Statute of Limitations. I have done no research on the time limitations applicable to your legal matter, thus I am unable to advise you on what the specific time limitations are. Therefore, I strongly urge you to immediately consult with another attorney in order to protect your rights. My decision not to represent you is not a legal opinion regarding the merits of your case.
By signing below, you acknowledge that you have received a copy of this completed client intake form. Your signature also confirms that you understand that I have not been hired as your attorney and that this firm will take no further actions on your behalf.
Signature_____________________________ Date ________________
The expanded use of a client intake form with text substantively similar to what I have suggested above does effectively eliminate the need for a separate declination letter. The issue is addressed and documented while the client is in your office.
One final thought. If you happen to practice in several different practice areas, simply alter the sample language to meet the needs of each practice area. For example, one reason why declination letters aren’t used with prospective divorce clients is wanting to avoid unintentionally letting a spouse know that a divorce is coming. This approach is a win/win on that front. The spouse will never have an opportunity to discover a letter from a law firm in the mail because documentation of the declination will be hand delivered to the prospective client before they ever leave the office.
Authored by: Mark Bassingthwaighte Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.