You’re Not Hired! Rules of Non-Engagement (Letters)
When you speak to potential clients, your goal is to hear them say, “You’re hired!” — or words to that effect. Then out goes the engagement letter, in comes the retainer and off to work you go. Isn’t that the point of a law practice, after all? Meet new clients, get retained, do the work, help your clients and make a living.
But have you given much thought to the potential clients who ultimately say, “You’re not hired”? These non-clients can come back and bite you if you’re not careful.
Unfortunately, if we’re not hired after the initial discussion with a potential client, most of us move on with our business and don’t give them another thought. Before you move on next time, think about sending out a non-engagement letter.
What Is a Non-Engagement Letter?
Non-engagement letters are exactly what they sound like: the opposite of an engagement letter. They communicate to non-clients that they are, in fact, not your client. The first time I sent one I felt funny writing something so obvious to me. Yes, we spoke; no, you didn’t hire me. It sounded a bit like sour grapes to write a letter stating what happened.
It is a good practice, though, and here are two common scenarios that show why.
The Unsuccessful Interview
We speak to people all the time who are contemplating hiring a lawyer or choosing among potential counsel. Not all will hire you. Yet, as potential clients, they do tell you about their case. There is no ongoing obligation to represent someone who came to talk to you, but having received information about the case does limit what you can do for others who might be involved in the same matter. Plus, you most likely shared your initial impressions of the case. You might not think you “rendered legal advice,” or provided counsel, but they may feel differently. If they leave the conversation feeling that you have given some advice on what to do next, and they follow it but their situation does not work out, they may come back and file a complaint against you for what they perceive as poor legal advice. Even if their complaint is baseless, you could end up wasting lots of hours and thousands of dollars defending yourself.
A non-engagement letter can avoid these problems. The letter will state that you and the non-client spoke and they shared basic details of their matter (which you have not verified through any sort of factual investigation), you shared initial impressions based on their representations about the matter, those initial impressions were only general thoughts and not legal advice or conclusions upon which the non-client should rely, and ultimately you chose not to work together on the matter.
If ever this non-client files a complaint stating she had retained you and you gave incompetent advice, this contemporaneous letter will significantly bolster your defense that you were never this person’s lawyer.
While many ethics rules lay out counsel’s duties to various individuals and roles, duties such as competence and diligence upon which many bar complaints are based are owed to clients. If a person has had an interaction with you that might be construed as a client relationship, you benefit by laying out very clearly that this person is not your client.
The Ongoing, But Never Consummated Relationship
Have you ever had a person who, after an initial discussion, says he’s hiring you but who never actually get around to signing the retainer agreement and sending a check? What if that person repeatedly calls for ongoing discussions, each time, of course, promising to send in that signature and check soon? The longer this goes on, the more like an attorney-client relationship it begins to look.
At some point in these non-starter discussions, it becomes clear the person is never going to actually hire you. Whether the non-client is only after free legal advice or does want to hire you but is prevented by some circumstance (usually lack of funds), for you the result is the same. By continuing to talk but never making it formal, you leave yourself open to a complaint that you have rendered advice. The moment you can see they are never going to complete the hiring process, send a non-engagement letter.
How to Write the Letter
Since it is a little clunky to write a letter stating that you’re not working together, a good place to start when drafting a non-engagement letter is your state bar. Many have sample non-engagement letters right alongside their sample engagement letters. To protect yourself, make sending one part of your routine business practices.
Megan Zavieh focuses her practice exclusively on attorney ethics, providing full and limited scope representation to attorneys facing state bar disciplinary action, and providing guidance to practicing attorneys on questions of legal ethics. She has been representing attorneys facing disciplinary action before the California State Bar since 2009 and is admitted to practice in California, Georgia, New York and New Jersey, as well as in Federal District Court and the U.S. Supreme Court. She blogs at California State Bar Defense and is a contributor at Lawyerist.com. Megan currently serves on the Executive Committee of the Solo and Small Firm Section of the State Bar of California.