What Non-Engagement Letters Really Do
Over the years I have found a real disparity among attorneys as to their willingness to write non-engagement letters. 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. Some attorneys religiously use them with each and every declination. Others just don’t see the need and haven’t written one in years. This might surprise you, but I come down somewhere in the middle. While I certainly appreciate the value of these letters, I will also admit that the number of claims attributable to the absence or presence of a non-engagement letter isn’t high.
When talking about non-engagement letters, I’ll often hear “If we have to write a letter every time someone says no around here, we’re never going to get any work done.” I understand that sentiment and don’t disagree with it because the purpose of a non-engagement letter isn’t to document that no attorney client relationship was ever formed every time an attorney happens to say “Thanks, but no thanks.” The purpose of a non-engagement letter is to try to prevent non-clients from coming back and claiming they were relying on you to take some action on their legal matter after you verbally said no. This is why I believe a decision to use a non-engagement letter with every single declination isn’t necessary. That said, a decision to not use them at all is 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. 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 any individual we’re interacting with responds to the situation.
For example, what if an individual responds 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 is going to look into their matter? What if an individual mistakenly assumes they can rely on you to take some unspoken or unclarified action? This is a problem that only documentation can resolve because, heaven forbid should a claim ever arise later on, in a word against word dispute you as the attorney will be in the weaker position.
Documentation doesn’t always mean you need to write a formal letter. Truth be told, there are going to be situations where a letter should not be written. Think about a potential divorce client. The last thing you want to do is unintentionally let an unsuspecting spouse know that a divorce is coming because that spouse happens to open an envelope from a law firm simply out of curiosity, and yes this has happened. There may also be times where the prospective client refuses to provide an address as a way to avoid receiving a bill for the initial phone inquiry. In situations like these, a note kept in one’s miscellaneous advice file 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 or if more convenient, simply hand deliver a non-engagement document at the conclusion of the initial consultation.
There’s one important side note you need to keep in mind, however. 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. 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 because 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 malpractice claim brought by a non-client. When it’s all said and done, that alone should make the effort worth it.
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 600 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.