New Lawyers Practice of Law

What to Tell a Client When the Case Lacks Merit

When you’re hired to make an initial case evaluation, make sure you have an understanding with the client that, if you find that the case lacks merit, you won’t provide any further representation on it. A case may seem compelling to the client, but you may see a fatal flaw. Explaining this can be uncomfortable, but it’s critical that you do so in a termination letter that clearly states your position.

If you find no legal basis to pursue the matter, communicate with the client, as in this sample language:

As you know, you retained me to closely examine the legal basis of the claim that you contacted me about, namely _ _[specify, e.g., returning a vehicle to the seller and obtaining a refund]_ _. I am writing to let you know that based on my review of the matter, including the documents you showed me and applicable law, it is my professional opinion that you lack a legal basis to pursue the matter in court. This is primarily because _ _[specify, e.g., the vehicle seller made all required disclosures to you about the vehicle, you had an opportunity to examine it and have it tested, and there is no right to return it simply because you have now changed your mind about wanting an additional vehicle]_ _.

Make sure to advise the client to seek other counsel if he or she wants to get a second opinion. And if there’s an applicable statute of limitations, refer to it in the letter so that the client is on notice of the limitations period:

Although this is my opinion, you may wish to seek other legal counsel about the matter, particularly because if you were to bring a legal action you would need to do so within _ _[specify limitations period]_ _ year(s) from _ _[specify, e.g., the date you entered into an agreement to purchase the vehicle]_ _.

Remind the client of your agreement that your representation on the matter would end if you didn’t find the case worth pursuing and then expressly state that your services are concluded and your representation of the client with respect to the matter has terminated.

Return any documents the client provided to you on the matter along with the termination letter, and let the client know how long you will retain a copy of the file (unless the client requests otherwise).

There are various instances in which it’s appropriate for an attorney to terminate his or her representation of a client after performing an initial evaluation of the client’s case. Get guidance and sample language to use in different types of termination letters in CEB’s California Client Communications Manual: Sample Letters and Forms, chap 7.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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