I have found a real disparity among attorneys when it comes to the use of non-engagement letters, the letter that documents the decision not to handle a prospective client’s matter. Some religiously use these letters with each and every declination. Others just don’t see the need and, in fact, 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 is limited. That said, viable claims can and do arise from situations where the absence or presence of a non-engagement letter was the problem and it was the non-client that sued. Ouch.

For most, a decision to use a non-engagement letter with every single declination will be overkill and not using them at all is taking an unnecessary risk. The prudent practitioner, however, understands what these letters seek to accomplish and will use them when called for. The number one reason that I hear for failing to use non-engagement letters is along the lines of “If we have to write a letter every time someone says no around here, we’re never going to get any work done.” I agree. These letters are not about documenting every time an attorney says “Thanks, but no thanks.” The primary reason for a non-engagement letter is to ensure and document that someone, usually a non-client, is not unwittingly relying on you to take some action on his or her legal matter.

Many attorneys typically don’t provide many prospective clients the opportunity to even entertain the thought that the attorney is taking on the prospective client’s legal matter. The conversation never gets that far. For example, if a cold call comes into the office asking if the attorney handles divorces and the answer is no, no one is going to view these circumstances as giving the prospective client the impression that an attorney is looking into their legal matter. However, if this same individual drops documents off for review or has a substantive discussion with an attorney about their legal issue, even if only over the phone or at a party, then the math changes.

As attorneys, it is so easy to perceive a review of documents or a conversation with someone as simply our inquiry into determining whether we’re even interested in the matter, or perhaps we simply see the interaction as extending a courtesy. Attorneys tend not to view these kinds of interactions as creating any obligations. However, it doesn’t matter what we think as attorneys as the underlying concern isn’t about our perceptions. The true concern is about how the prospective client views the interaction. From this perspective, a prospective client may be responding to the interaction with a sense of relief now that an attorney is looking into their matter and this individual may unwittingly begin to rely on you for some unspoken and unclarified action. This is a problem that only documentation can resolve because, heaven forbid, in a word against word dispute you, as the attorney, will have the weaker position.

Documentation doesn’t always mean that a letter needs to be written. In fact, there are situations where a letter should not be written. A potential divorce is the classic example. You don’t want to unintentionally notify the unsuspecting spouse of the prospective client who finds and opens the unexpected letter from an attorney that their partner is contemplating getting a divorce. In other instances, a prospective client may refuse to provide an address fearing the receipt of a bill for the inquiry. In these situations, a note written on a message slip or memo pad and kept in one’s miscellaneous advice file may be all that is called for. That said, however, if documents have been reviewed or a substantive discussion with the potential client has occurred particularly in the office, then strongly consider sending a non-engagement letter. If more convenient, hand deliver the non-engagement letter/document at the conclusion of the initial consultation.

Finally, be careful not to fall into the trap of believing that a non-engagement letter protects an attorney from a malpractice claim if any legal advice was given during the initial consultation, as an example, or even 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, simply limit your exposure to any advice given up to and/or included in the letter documenting the declination. So, 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 simply failed to fully investigate the matter and an exception, such as the involvement of a governmental agency, was in play.

When used responsibly, non-engagement letters do meaningfully contribute to a firm’s risk management efforts. While I appreciate that these letters are viewed as burdensome and the time spent writing them isn’t billable time, selective and appropriate use of the tool can and will reduce your risk to being sued by a non-client and that hopefully makes it worth the effort.