7.7 – Non-Engagement Letters

Let’s address the fact that not all inquiries or interviews result in a retainer. Almost as important as having a proper retainer agreement in place when you commence a new solicitor-client relationship, is ensuring and confirming the lack of a retainer when you decide to decline a new solicitor-client relationship.

Not every potential client is a good client and you should not be fearful of rejecting a client. Doing so may save you the stress of a difficult client, minimize fee collection issues, avoid malpractice claims, and even improve morale in your office. A client who is difficult for you, is generally also difficult for your staff.

Sometimes you will decline a client relationship for ethical reasons, such as:

• conflict of interest,
• matters beyond your competence,
• not having time or capacity to handle the matter, or
• the client lacks the capacity to give instructions.

Other times, different considerations will take precedence. Red flags might include that the potential client:

• has bounced from one firm to another,
• has unrealistic expectations or demands,
• is rude or abusive to you or your staff,
• can not explain to you what they want to achieve,
• wants you to pursue a case that is without merit, or a “principle-based” or “hurt feelings” case (little or no quantifiable damages), and/or
• wants you to represent them but refuses to sign a retainer agreement.

Trust your judgment about potential clients and act accordingly.

If you decide not to represent a prospective client, send a non-engagement letter. The purpose of a non-engagement letter is to dispel any notion in the mind of the prospective client that you represent him or her. In the non-engagement letter:

• Advise the individual that you do not act for them and that you will not be taking any steps on their behalf.
• Return any documentation or other property that you may have obtained during your initial interview.
• Be sure to advise of potential limitations periods, so they are not placed in a disadvantaged situation.
• Advise the client to seek other legal counsel.
• Do not include an opinion regarding the merits of the matter you have declined.

Retain a copy of the non-engagement letter on your file and ensure that you have entered the relevant information in your conflict-checking system.