What is a non-engagement letter?
When should a non-engagement letter be used?
What should you include in a non-engagement letter when you draft one?
In this article, we will look at all there is to know about a non-engagement letter.
We will look at what it is, what it contains, what it should not contain and when to use it.
Are you ready?
Let’s get started!!
What is a non-engagement letter
A non-engagement letter is a document clarifying that a lawyer is not, or will not, be representing a particular person in the context of a transaction, lawsuit or following a preliminary interview for instance.
Typically, the non-engagement letter will stipulate in clear terms that the lawyer is not representing a particular person and they must make sure they get legal representation to ensure their rights are protected.
A letter of non-engagement is an important document for both the lawyer and the person the subject of the non-engagement.
On the one hand, the lawyer is making it clear that he or she is not representing the person and the person should not rely on him or her for legal advice.
Also, since the lawyer is confirming that there is no legal representation mandate, the information shared by the person will not be protected by the client-lawyer privilege.
Content of a non-engagement letter
What does a non-engagement letter typically contain?
When a lawyer issues a non-engagement, the goal is to be very clear about the relationship the lawyer is intending to build with the person in question.
The non-engagement letter will generally state the following:
- Who is the lawyer issuing the non-engagement letter
- Who is the recipient of the letter
- Description of the reason why the non-engagement letter is being sent
- A clear statement that the lawyer is not representing the recipient nor they are advising them in any way
- A statement about who the lawyer is representing if the lawyer is handling a transaction requiring him or her to speak to several individuals
- A statement that the recipient should contact another lawyer to get legal representation
- A statement that some legal rights can be exercised within a certain period and the person should make sure to act before the statute of limitation timelines
- A statement that although you are not accepting the mandate, it does not mean the person does not have a valid claim
With a non-engagement notice, the idea is to make sure that the recipient does not expect legal advice or representation in any way from the lawyer performing a transaction or handling a matter.
What not to include in a non-engagement notice
The purpose of the non-engagement letter is to make it clear that you are not hired as a person’s lawyer.
What are the points that you should avoid addressing in your non-engagement letter?
Here are some points to make sure you do not include in your letter declining representation:
- Do not promise that you will complete the representation formalities at a later point
- Do not legally qualify the facts submitted to you or address the merits of the case
- You don’t need to explain why you are not representing the person
- Do not calculate the statute of limitation timeline but make sure you indicate that statute of limitations apply and the person should consult with another lawyer
You want to remain short and sweet.
Make it clear that you are not representing them and make sure you tell them that they need to find the services of another lawyer to consider their legal claims and they must act quickly.
When to use a non-engagement letter
When a lawyer is hired by a client, you’ll sign an engagement letter.
On the flip side, when a lawyer wants to make sure they are not hired by a potential client, they’ll send a non-engagement letter.
There are some common scenarios where a non-engagement letter should be used:
- No engagement after the first interview
- No response to an engagement letter
- More detailed case assessment
- Termination of an engagement
- Non-engagement for conflict of interest
No engagement after the first interview
When a lawyer interviews a prospective client on the merits of their claim, if the lawyer is not hired, it may be worth sending a non-engagement letter to the prospect.
This way, it is clear that although the prospect client had paid the lawyer for consultation fees and may have exchanged some preliminary information about a legal issue, the lawyer is not formally mandated or engaged to advise the client.
This is a good practice to have as in some cases, a potential client pays for a quick interview, gets some high-level advice, follows through with that advice and suffers damages.
Subsequently, they will file a complaint against the lawyer gave incompetent legal advice.
The non-engagement letter will help protect the lawyer against potential complaints based on a lack of competence as in this example.
No response to an engagement letter
Another scenario where a non-engagement letter can be used is when a lawyer is interested in working for a prospective client, they have developed an ongoing relationship but the client fails to formalize the mandate and pay the initial retainer.
In this case, to avoid an ongoing relationship developing into a client-lawyer relationship and privilege, the lawyer may want to send a letter of non-engagement to make it clear that the mandate needs to be formalized before the lawyer can continue rendering legal services.
More detailed case assessment
In some cases, you may have done a preliminary interview and were interested in taking on a case.
However, to better assess if you can accept the mandate, you may need to ask further questions, get more details and perhaps meet the person again.
In such a case, you may want to send a non-engagement letter indicating that you are exploring the possibility of handling the matter and you need more information to make a decision.
You will indicate to the person that these meetings are preliminary and are strictly intended to validate if the mandate can be accepted by the lawyer or not for future representation.
Termination of an engagement
You may need to use a non-engagement letter content in the context of the termination of an engagement.
You interviewed a client, you were interested in the case and signed the letter of representation with the client in question.
However, you are no longer able to find the client, there is little to no communication or collaboration in helping you handle your legal matter.
In this context, you may terminate your engagement and use content similar to what you would have used in a non-engagement letter.
Although the termination of the mandate letter is different from a non-engagement letter, they will have some similar aspects.
Non-engagement for conflict of interest
If you had a meeting with a prospective client to evaluate their legal claim and the possibility of you acting as their attorney and later you discover that your law firm or you as a lawyer may be in a conflict of interest and cannot pursue the matter.
You will need to send a non-engagement letter to the prospective client to advise them that you or your law firm are unable to continue representing the person.
Importance of non-engagement letters
The non-engagement letter may appear to be an administrative burden.
However, it’s extremely important and can prevent costly malpractice claims against a lawyer.
Lawyers must not only make sure to have an engagement letter for clients who hire them but must also be mindful of sending non-engagement letters to make it clear that they are not hired.
One important scenario where attorneys may be at risk for malpractice claims is when a prospective client loses the right to a claim as a result of the operation of the statute of limitations.
It’s important to indicate in a non-engagement letter that some legal remedies or claims are time-sensitive.
If the person does not act within the legal period, they may definitively lose the ability to file a legal claim.
The non-engagement letter will serve as a notice to a person that the lawyer is not monitoring the person’s rights and the consequences of the inaction on the part of the person.
Prevent inadvertent legal representation
In the event a person receives legal advice leading the person to rely on that advice to make decisions, a client-lawyer privilege is formed.
The attorney-client privilege can be formed based on a written mandate or an implied or tacit mandate.
Lawyers must be careful not to develop an attorney-client relationship when they did not have the intention to do so.
Documenting your relationship and the fact that you declined to represent someone will ensure that you have evidence demonstrating you did not have the intention to represent the person.
Here are some tips to avoid representing someone inadvertently:
- Try to avoid friendly settings in talking about someone’s case
- Don’t start a mandate until the formalities at your law firm are properly followed
- Take notes about the specifics of your calls with someone and try to document it in an email or letter after
- Tell the prospect of the application of the statute of limitation and keep a record of this statement
- Don’t get into the details of someone’s case or obtain confidential information unless you have made sure you are willing to take the case
If you take some simple precautions, you can avoid a lot of headaches going forward with those who did not retain your services!
Takeaways
In this article, we’ve looked at the non-engagement letter in detail.
A non-engagement letter is a letter confirming that a lawyer is not hired or not representing a person.
This letter can be used in many situations.
Sometimes, a lawyer will need to work with someone in the context of a transaction or a lawsuit.
To avoid any confusion as to who the lawyer represents, a non-engagement letter may be used to ensure the clarify the relationship between the lawyer and the person in question.
The non-engagement letter will state:
- The lawyer is not representing the person
- The person is encouraged to speak with another lawyer
- The person should be mindful that their rights may be lost due to the passing of time
A lawyer can avoid potential malpractice claims in the event a person believed that the lawyer was representing them or giving them advice.
A letter of non-engagement can also be used when:
- A lawyer has interviewed a person but does not intend to take the case
- A lawyer has interviewed a person and needs to perform more research or get more information to decide if the case is worth taking or not
- A lawyer is interested in a case but the prospective client does not complete the mandate formalization steps
- A lawyer has completed the mandate formalization steps or not and discovers a potential conflict of interest.
Lawyers should make sure they use letters of non-engagement whenever there is doubt as to whether or not they are representing someone.
We hope this article has helped you better understand the non-engagement letter, what it is for and when it should be used.
In what context have you used a non-engagement letter?
We would love to hear from you, drop us a comment!
