I still get the occasional inquiry where the caller wants to be reassured that it’s okay to never write a non-engagement letter. You know the one. It’s that letter that says thanks for checking us out but we’ve decided not to take your matter on.
Over the years I have found a real disparity among attorneys as to their willingness to write 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.
Attorneys often share “If we have to write a letter every time someone says no around here, we’re never going to get any work done.” Now I don’t take issue with that perspective because the purpose of a non-engagement letter isn’t to document that there is no attorney client relationship every time an attorney happens to say “Thanks, but no thanks.” The real purpose of a non-engagement letter is to ensure and document that someone, often 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. This is why I believe a decision to use a non-engagement letter with every single declination is properly viewed as overkill. That said, 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 their legal matter on. 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 these situations. In contrast to this, however, if a prospective client happens to get as far as being able to drop documents off for review or actually has a substantive discussion with an attorney about their legal issue, to include discussions that occur 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. In fact there are going to be situations where a letter should not be written such as with a 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 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 for example, 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 that the attorney was unaware of, 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, the selective and appropriate use of this tool can and will reduce your risk of having to deal with a claim brought by a non-client. When it’s all said and done, that should make the effort worth it.