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Thanks, But No Thanks: Help on Turning Down a Case

It may seem hard to believe for those scrambling for clients, but there are times when you will need to turn down a case. When you find yourself in that situation, a simple “no, thank you” will not suffice.

During or after an initial consultation or other preliminary contact with a prospective client, you may determine that it’s necessary or appropriate to decline the representation. There are many factors to consider when deciding whether to accept representation. Among the more common reasons attorneys decline representation include:

  • The prospective client’s matter would pose a conflict of interest with a current or former client, including a client represented by another member of the same law firm (Cal Rules of Prof Cond 3-300, 3-310);
  • The prospective client’s matter would pose a personal conflict with your legal, business, professional, or interest in the subject matter (Cal Rules of Prof Cond 3-300);
  • The prospective client’s matter is outside the scope of your practice or otherwise is of a type that you do not feel you can competently handle (Cal Rules of Prof Cond 3-110);
  • The prospective client is one whom you do not feel that you could represent to the best of your ability based on your personal observations, discussions, or other interactions with the client (see, e.g., Cal Rules of Prof Cond 3-120);
  • Based on your preliminary evaluation, the prospective client’s matter lacks legal merit or involves presenting an unfounded or illegal claim (see generally Cal Rules of Prof Cond 3-200, 3-210, 5-200); or
  • The prospective client is unable or unwilling to enter into an appropriate agreement for the payment of your services, or has failed to pay an initial retainer fee that was agreed to be paid before your representation would start.

Although it’s sometimes appropriate to simply decline representation in a face-to-face or telephone consultation with a prospective client (e.g., an individual with a criminal case was mistakenly referred to an estate planning attorney), it’s better practice to communicate in writing that representation is declined—this will help minimize the risk of misunderstanding and potential malpractice liability.

In drafting this writing—referred to as a nonengagement letter—keep the following primary considerations in mind:

  • Be polite, but direct and clear, about the reason you are declining representation, while avoiding “legalese” that the recipient might not understand;
  • Reiterate any particularly important issues that you previously discussed in person that might affect his or her case if left unattended;
  • Emphasize to the recipient that, although you will keep the particular facts of the matter you discussed in confidence (in the absence of a waiver of confidentiality), you have not entered into an agreement for further services, and are not setting up or maintaining a file about the matter;
  • Consider providing the recipient with a reference to a county bar association attorney referral service for further assistance with the matter; and
  • Be sure to include a provision on the possible existence of a limitations period.

Don’t let the nonengagement letter linger; prepare and send it as soon as possible after you decide to decline representation.

Not sure what to include in a nonengagement letter? CEB’s California Client Communications Manual: Sample Letters and Forms (chap 2) has several sample letters based on different reasons for declining representation. Here’s an excellent video introduction to this book by one of its stellar authors, Micha Liberty.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

8 Responses

  1. […] don’t have a legal duty to accept a civil matter. You can just say, “thanks, but no thanks.” But if you do decide to take on a civil case, you’ve got an obligation under […]

  2. […] Thanks, But No Thanks: Help on Turning Down a Case […]

  3. […] of these issues of complexity, time, or expertise may lead you to decline the case. Of course, there’s also always the issue of money: Does the client have the ability to pay costs […]

  4. […] Thanks, But No Thanks: Help on Turning Down a Case […]

  5. […] But there are also some clients who can’t control their emotions, and this lack of control prevents them from exercising good judgment in making decisions about the case. These clients often won’t consider reasonable compromises or cooperate in discovery, and will complain if you’re polite to opposing counsel. These clients will undermine your efforts to solve their legal problem—and you’d be wise to decline to represent them. […]

  6. […] material is reproduced from CEB Blog entry, Thanks, But No Thanks, CEB Blog (August 29, 2012 https://blog.ceb.com/2012/08/29/thanks-but-no-thanks/). Copyright 2012 by the Regents of the University of California. Reproduced with permission of […]

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