You meet with a prospective client and explain that you’ll need a initial retainer fee to get started. The prospective client doesn’t pay the fee and you’re pretty sure this will be a pattern, so you decide not to take on this person as a client. Now you’ll need to inform him or her in writing.

Write a nonengagement letter to the prospective client explaining that you’re declining to represent him or her because of the failure to pay your initial retainer fee. Something like this:

Thank you for contacting our office on the matter we discussed on the above date. As you will recall from our discussion, I indicated that my representation of you was specifically conditioned on your paying my initial retainer fee of _ _[dollar amount]_ _ within _ _[specify, e.g., 30]_ _ days from the date we met. It has now been more than _ _[specify, e.g., 30]_ _ days since that time and, because I have not received the payment, I therefore, respectfully, decline to represent you.

Then comes the part of the letter in which you cover yourself. If it’s possible that a limitation period could affect the prospective client’s rights, point that out. Specifically, state that

• there may be a limitations period within which the prospective client must take action to secure his or her legal rights;
• you haven’t investigated and aren’t advising on whether such a limitations period exists; and
• the prospective client should contact another attorney for advice on this issue and how to secure those rights.

Conclude by saying that you’ve returned everything on the matter and won’t be keeping a file. Stay polite, even gracious, but make it clear that you won’t be representing the prospective client in the matter. For example:

I have returned to you any papers or other materials that you brought to me in connection with our discussion, and I am not retaining a file on this matter. Again, thank you for contacting our office. I hope that I can be of assistance to you at some later time on a different matter.

Of course some prospective clients are worth keeping even if they miss the initial retainer payment deadline. In those situations, you could write a similar letter but with a provision for the person to “cure” the lack of payment by paying within a given time period.

Get sample letters with commentary for various nonengagement situations in CEB’s California Client Communications Manual: Sample Letters and Forms, chap 2.

Other CEBblog™ posts you may find useful:

• What to Tell a Client When the Case Lacks Merit
• What to Tell Clients About Their Files at the End of the Case
• Should You Be Using Client Intake Forms?

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