By William C. Saturley and Bernard D. Posner
The Daily Record Newswire
When taking a new case, a smart lawyer crafts a detailed engagement letter that documents the scope of his responsibilities to the client. The document serves a crucial role in spelling out the terms of the representation. Less attention, however, is typically given when a lawyer turns down a matter. That can prove risky if the potential client leaves with a mistaken apprehension of your duties or procedural aspects of his case.
Declining a prospective client
Excluding public service obligations and situations in which a lawyer is under a court order, an attorney has great latitude in deciding whether to represent a prospective client.
Except for a few very limited exceptions, states refuse to impose any duties on a lawyer in the absence of an attorney-client relationship. Such a relationship is created when: (1) a person seeks advice from an attorney; (2) the advice sought pertains to matters within the attorney’s professional competence; and (3) the attorney agrees to give the desired advice or assistance.
An “agreement” can be established by proof of detrimental reliance. Turning down a prospective client must be done so that the party has no basis on which to claim that you were his attorney.
Non-engagement letter
The non-engagement letter often is an inadequate format to discuss the statute of limitations. The initial interview typically falls short of providing the attorney the opportunity to consider the law or sufficient facts to make such a determination.
Nevertheless, if you find it helpful to give notice of possible statute of limitations expiration dates, qualify your statement. Note that the issue was insufficiently researched and urge the non-client to seek other counsel and to bring the issue to that counsel’s attention.
Offering a wrong opinion may be worse than no opinion at all. The prospective client may rely on the date to his detriment and delay seeking new counsel. Any writing will likely be overwhelming evidence of the “advice” given the prospective client as to the statute of limitations issues.
For this reason, when issuing a non-engagement letter:
• Use caution in specifying any expiration date;
• Make clear you did not consider the expiration dates;
• Urge the non-client to find another attorney to consider his case; and
• Get the letter to the rejected non-client in a timely manner.
Withdrawals
A different analysis may apply to a lawyer who was actually retained by a client and later seeks to withdraw.
Under many states’ rules, that lawyer has an ethical responsibility to protect the client’s interests and can only withdraw if it will not cause a material adverse impact to those interests.
The lawyer’s obligation extends to taking steps to protect the client’s interests even after the withdrawal.
The attorney presumably had access to facts, examined the relevant law, and knows the adverse party. With that knowledge, the lawyer may have made at least a preliminary determination of the limitations period and may have an implied duty to do so.
Logically and ethically, the relationship differs from one with a prospective client. The lawyer is under a duty to communicate with, and educate the client about, any limitations deadlines.
A withdrawal letter prepared by the attorney should:
• specify relevant deadlines;
• obtain an acknowledgement of the advice; and
• recommend new counsel.
Any rejection of a prospective client should be documented by a non-engagement letter. That can avoid a possible later charge that a duty was owed and potential consequent liability.
Care should be taken to avoid giving any advice in the non-engagement letter, because the interaction between the lawyer and prospective client is limited. When a lawyer withdraws from representing a current client, however, the lawyer terminates an existing duty and needs to ensure that the client clearly understands any looming deadlines.
William C. Saturley and Bernard D. Posner are members of the business litigation and professional liability practice groups at Nelson, Kinder, Mosseau & Saturley in Boston. Saturley can be contacted at wsaturley@nkms.com; Posner is at bposner@nkms.com.
