You know how you get a “gut feeling” against someone or a situation? This can definitely happen in your law practice. It may be that your personal observations, discussions, or other interactions with a prospective client will lead you to believe that you couldn’t adequately represent the client, or that the client won’t cooperate with you on the matter. When you get that feeling and decide to heed it, here’s how to politely and effectively extricate yourself.
There are many reasons you might decline to represent a prospective client after having discussed that person’s matter and observed his or her demeanor. For example, he or she may already have hired and fired numerous attorneys on the same matter, and you have serious doubts that you could effectively provide representation over the probable life of the matter.
Or maybe the issue is your own personal relationship with a prospective client and, in particular, the existence of a romantic or sexual relationship. Although an attorney can represent a client if the sexual relationship existed before the formation of an attorney-client relationship, consider whether your ability to adequately represent the client will be affected by this sexual history before you proceed with the representation. Cal Rules of Prof Cond 3–120(C).
If your observations lead you to decline representation as a business decision, draft a letter that will expressly and politely convey that you feel your involvement as an attorney would not be best. Note that if you’ve already been retained to undertake a formal review and evaluation of a case, you’ll have to send a somewhat different letter terminating the existing attorney-client relationship. See generally Cal Rules of Prof Cond 3–700.
The most important points to make when declining representation are that
- there’s no attorney-client relationship between you and the prospective client;
- there’s a possible limitations period within which the prospective client must take action to secure his or her legal rights; and
- you haven’t investigated and aren’t advising on whether such a limitations period exists, but instead are urging the prospective client to seek other advice.
Here is sample language you might include in such a nonengagement letter:
Thank you for contacting our office on the matter we discussed on the above date. This letter is to inform you that, regretfully, this office will not be representing you. This decision is a business decision and is not meant to reflect on the merits of your case in any way.
Because we are not in an attorney-client relationship, I will not be taking any action on your behalf, monitoring developments, advising you, or otherwise representing your interests with respect to the matter we discussed. In addition, I have not investigated or evaluated the facts or legal merits involved in your matter, and I have not given you legal advice on how to proceed.
Please take note that time limitations set by statute may affect your ability to take legal action, such as a lawsuit, or other measures on the matter we discussed, and you may be precluded from exercising your legal rights if you do not take action within an applicable time period. Although I have not investigated or advised you on whether a time period or other limitation applies to your situation, I urge you to promptly contact another attorney for advice on whether you would need to take legal action within a certain time period or take other steps to secure those rights. If you do not know of another attorney, I suggest that you contact your local county bar association for a referral to another attorney in the area.
Get sample language to use in letters to your client in all situations from the first meeting to the end of the representation in CEB’s California Client Communications Manual: Sample Letters and Forms.
Other CEBblog™ posts you may find useful:
- What to Tell Your Client When Litigation Is Over
- Why Are Client Communications So Important?
- Should You Be Using Client Intake Forms?
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