Non-engagement letters can keep lawyers off the hook

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Lawyers who decide not to represent a potential client need to make it clear that no attorney-client relationship exists. The best way to do that is to send a non-engagement letter.

“A non-engagement letter confirms with consumers that they are not clients. They therefore can have no assumption that an attorney/client relationship exists, which is critical in certain cases,” said Jill Rothstein, risk management director for the South Carolina Bar Association.

Such a letter not only reduces the risk of misunderstandings, it also protects the attorney from complaints by people who thought he or she was representing them.

“You should always use a non-engagement letter when you meet a potential client and you don’t take that client,” Rothstein said. “It confirms to the client where [he or she] stands, [and] gives the lawyer the added safety measure of having something in writing.”

Pat Yevics, the Maryland State Bar Association’s director of law office management assistance, recommends sending a letter even if the attorney has explained to the consumer in person that he is not representing him.

“A client comes into a lawyer’s office, and to a large extent, he’s clueless. While the lawyer may know he hasn’t taken this person’s case, I’m not sure the client always does,” she said.

Rothstein said an attorney should send a non-engagement letter after any discussion about a potential case, even a chat at a cocktail party about someone’s auto accident.

“It’s probably worthwhile to send a letter saying, ‘It was a pleasure to talk with you at the cocktail party. However, as I indicated, I will not be able to represent you,” she said.

Failing to send a letter could have dire consequences, including malpractice claims by claimants whose suits weren’t filed in a timely fashion, according to Rothstein.

“You could be accused of malpractice; you could have a grievance filed against you,” she noted.

Keep it short

Many state and local bar associations have sample non-engagement letters available for downloading.

In its most basic form, the letter simply says, “Thank you so very much, but I am not going to be able to pursue this with you.”

Rothstein suggested personalizing the letter (for example, mentioning a client that referred the person), but refraining from explanations about the decision to decline representation.

Yevics agreed. Even explaining why you think a case is “not a good case” could be perceived as evaluating the case on paper, she said.

Rothstein said she thinks the attorney should inform the person if there is a statute of limitations issue.

“I think there’s a possibility that if you don’t, they could … say this lawyer did not fully inform me of the statute of limitations, and therefore I didn’t go see [another attorney] until two months later,” she said.

But, advised Yevics, “I wouldn’t say for certain there are statute of limitation issues. I would say, ‘If there are statute of limitations issues you need to speak with someone as soon as possible.’”