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We have previously blogged about some of the good resources that are available from various professional liability insurers.  Recently Swiss Re (Westport Insurance) created a “PA Bar Risk Management Webinar” on the subject of documentation for lawyers.  Among the excellent information contained in this Webinar is sample language for several types of letters which should be regularly employed by attorneys.  Use of these letters is important in defining the scope of representation and managing client expectations, which are vital parts of malpractice avoidance.  Seven “primary” letters are identified in the Webinar: 1) engagement letter; 2) non-engagement letter; 3) non-client letter; 4) demand/expectation letter; 5) judgment call/rejection of attorney recommendation; 6) disengagement letter; and 7) closing letter.

While each of these letters can be vitally important, two of them strike me particularly as letters that are not used with sufficient frequency, and could prevent a significant number of legal malpractice cases if used with regularity.  Non-engagement letters are very important.  It is remarkable how frequently a client will hear a what an attorney believes is a clear “no” as “yes.”  Therefore, if a meeting with a potential client does not result in representation, the lawyer should send a non-engagement letter which includes:

• You have decided not to take their case

• don’t give opinion on the merits of their case

• warn them that a statute of limitations may exist that could bar their case (do not offer an opinion as to what the statute might be)

• advise them to contact another attorney immediately

The Webinar has provided some suggested sample language for non-engagement letters which we have been given permission to reprint:

In declining to take your case, we are not expressing an opinion about the merits of your position. We encourage you to consult with another attorney regarding your case if you so choose. Our decision not to accept this representation should not be interpreted as an adverse opinion about the merits of your case. We are not charging a fee for reviewing the materials you provided. We charge a fee only for opinions about possible claims. Because we have not provided you with an opinion, there is no charge.

Please note that the law limits the time within which individuals may file law suits. Allowing too much time to pass may forever bar you from asserting your claim. We are not providing our opinion as to the date by which you must file any law suit against [potential adverse parties]. We encourage you, however, to immediately contact another attorney if you wish to pursue your claim.

The Webinar also suggests language for when an attorney meets with a client who decides not to retain him/her:

It was a pleasure to meet with you on [date] to discuss [subject matter of consultation]. At the end of our meeting, you stated that you wanted some time to decide whether you wished to proceed with that matter. Unless and until you agree to proceed with [subject matter] and that we will represent you in that matter, you should not consider us to be your attorneys. We are not representing you at this time, and will not represent you unless and until you sign a formal engagement agreement. Please note that the law limits the time within which individuals may file law suits. Allowing too much time to pass may forever bar you from asserting your claim. We are not providing our opinion as to the date by which you must file any law suit against [potential adverse parties]. We encourage you, however, to immediately contact another attorney if you wish to pursue your claim.

The another type of letter that is severely underutilized is what the Webinar refers to as the “Judgment call/rejection of recommendation” letter.  This is a letter which should be sent when the client makes a decision regarding the representation that could effect the outcome of the case, especially when a client rejects the attorney’s recommendation.  Unfortunately, there can be no set language for this type of letter, but it should outline the options presented to the client, the ramifications of each option and the choice the client made.  If the client is rejecting your recommendation, state that the client has selected an option that is not your recommendation.  Such letters, when used regularly, will go a long way to fulfilling your obligations under Pennsylvania’s Rule of Professional Conduct 1.4 (Communication), and are a good start in malpractice avoidance.

-Josh J.T. Byrne, Esquire (H.T. Elizabeth Whitney, Esquire/Swiss Re)