Lawyer Protection – The Engagement Letter
November 2, 2015
Carefully drafted engagement letters memorialize reasonable expectations. They can also provide protection for lawyers. Although one size does not fit all, engagement letters should:
- Identify the client, including who is not the client in the corporate family context. For example, consider language clarifying that representation of a corporate entity is not to be construed as creating an attorney-client relationship between the corporate client’s parents, subsidiaries, divisions or any other corporate affiliate.
- Identify with precision the scope of engagement; avoid “Re: legal representation.” For example, if the matter involves litigation, state the case caption.
- Billing/payment terms, including hourly rates, payment or reimbursement for identified costs, any applicable retainer terms, and whether someone other than the client is paying the fees.
- Multi-party representation: confirming in writing that no conflicts between the clients exist, such as (1) the potential for claims between the clients, (2) conflicting prospective testimony, (3) conflicting instructions, (4) conflicting objectives or positions and (5) conflicting expectations of confidentiality.
- Multi-party representation: confirming in writing that client confidences relate to the clients as a group, and that separate and independent client confidences as to any individual client will not be maintained.
Spending a few minutes at the front end of a client engagement can save you time, money, energy and risk at the back end of an engagement especially if the relationship sours.