FEATURED ARTICLE

Why the Use of an Engagement Letter Should Never be Optional

(Part II)

Mark Bassingthwaighte, Esq

Beyond these basics, a more formal engagement letter can also be used to inform the client about the obligations of both the lawyer and the client during the representation.  You might consider discussing the conditions  under which additional work will be accepted, how work on the matter will proceed,  how and when phone calls will be returned, how fee disputes will be addressed, the circumstances that could result in withdrawal, how and when the representation will end, and/or the specifics of your file retention destruction policy.

For flat fee in-and-out work or with the long-term or repeat client, a more relaxed letter can often take care of documenting the engagement. These letters can be as simple as a confirming email. Some attorneys take a little more time and write a "thanks for stopping by letter" or a slightly more formal letter of clarification. Regardless, write to your audience. The idea here isn't to write a CYA letter; but to clarify that everyone is on the same page.  Memories can be short, and again if there is no writing, a problem could arise down the road. These letters should focus on the basics and are the document that sets the expectations for the services to be performed. At a minimum clarify and confirm who the client is, what the scope of the representation is, the rate or fee to be charged, and any other critical information. Attorneys that do this well often use this more informal engagement letter as the opening letter that starts to drive the matter forward by confirming what happens next.

While the items discussed thus far continue to be the building blocks of a good engagement letter, new issues are cropping up. For example, there are a host of issues being created by clients who are participating in social media. Fortunately, some of these issues can and should be addressed in an engagement document, formal or otherwise. While these issues will continue to change and evolve over time, it helps to come at the problem by remembering what it means to be an attorney. Think legal advisor. For example, some clients have no idea what the term "attorney client privilege" means nor do they understand the ramifications of losing it. What would happen if a client posted a copy of an email from you to their Facebook page, tweeted status updates every time they heard from you, or regularly communicated with you using their work email address? Who is the attorney, and what does that mean given the realities of how people communicate in today's world? It means that an attorney would be well advised to address such issues with the client at the beginning of representation and a perfect place to do this would be in an engagement letter. Things worth addressing might include how and when to use email; should client use of social media be limited or even restricted for a period of time; should communication occur via employer owned devices to include smart phones, computers, and tablets; and should passwords on personal accounts be changed to prevent unauthorized access.

Taken together, my hope is that the above thoughts lend enough support of the engagement letter to warrant its regular use on all new matters and with every client. Set the excuses aside. A well drafted engagement letter creates a road map of the terms and conditions of the representations.   Finally, allow me to leave you with one final thought. Who has hired who?  There is real value in taking the time to acknowledge and honor your clients by saying thank you for bringing new work to the firm and doing this in a professional and informative way. That's powerful stuff.