One of the best instruments for an attorney to protect himself or herself from a malpractice lawsuit is a well-drafted engagement letter. The engagement letter is frequently disregarded by attorneys – instead, the attorney opts to just engage in a verbal agreement. However, a written engagement letter can be critical to both preventing and defending a professional liability claim.
Significantly, the engagement letter ensures the attorney and the client are in agreement regarding items such as:
- Who is the client;
- Where the legal engagement will take place;
- Attorneys who will be involved in the matter;
- Length of the engagement;
- Fee structure and firm policies; and
- Scope of services.
When the attorney and client communicate clearly and reach an understanding on these subjects at the beginning of the association, disputes are minimized. Engagement letters can correspondingly assist the attorney in withdrawing from representation when the client is not complying with payments or other terms of the engagement letter.
The attorney’s scope of services is an issue often litigated in a professional liability action. A clear description of the scope of services at the start of the legal engagement may avert several controversies. It will not avoid every dispute; however, it should bolster the attorney’s stance later if a claim should arise. If the scope of services changes during the legal engagement, the engagement letter should be amended or a new engagement letter entered into to reflect the changes. If the services end before expected, a letter should be sent to verify that the legal engagement has been terminated.
To be effective, engagement letters should be specific to the client and the services provided. It is important to carefully review an engagement letter, especially if the engagement letter is a form letter, to make sure it fits this client and the services agreed upon in the legal engagement.