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.