Yesterday, we discussed the disengagement letter, and other tips for ending representation. What about situations where you don't want to take the case at all? Do you need to do anything to cover your butt, such as a non-engagement letter?
Unfortunately, this is a gray area, and a matter upon which many lawyers will disagree. Some argue that because the letters take time, and aren't billable, that they are a waste. Others see the words "malpractice lawsuit" and their bowels loosen. The correct response is probably somewhere in between.
"Hi, do you handle shareholder class-action lawsuits?"
"Uh, no. I'm a divorce attorney. In Missoula, Montana. The only stock we have out here goes 'Moo.'"
For those quick phone call rejections, it's not worth getting the person's information, and drafting a non-engagement letter, just to say that you don't practice that type of law.
In other scenarios, where you have taken client files for review, done substantive research to see if there is a tangible cause of action or claim, or even where you had a lengthy, substantive discussion of the client's case during a consultation, your best practices should probably include a non-engagement letter.
The letter should include a clear statement that you are not taking the case and that you will not be doing anything further on the client's behalf. If there are any statutes of limitations, or other important deadlines coming up, these need to be spelled out, accurately, in the letter. If you can be sued (successfully or not) for merely having a consultation with a client, imagine how much luck that client will have if you tell him, in a written letter, that he has two years to file (and he only had two months).
A few sample letters can be found here, courtesy of the ABA's Solo Division newsletter.
Mark Bassingthwaighte, writing on the Solo Practice University blog, points out another scenario which is worrisome: the divorce consultation. You can't send a non-engagement letter, on law firm stationary, to someone who is considering divorce, for fear of surprising the spouse.
Your options for these types of sensitive matters is a short note, at the end of the consultation, explaining that there is no ongoing representation. Or perhaps you put it in an email, addressed to an account that only the client (and not the spouse) can access. Either way, certain matters require discretion -- adjust your policy accordingly.
We're a bit overcautious, so we'd lean towards, "When in doubt, write it out." How about you? Do you use non-engagement letters in your practice? Join the discussion on Facebook at FindLaw for Legal Professionals.