Avoid the Problem of Unintended Representation! P1

Avoid the Problem of Unintended Representation! Part 1
By Cynthia Sharp, The Sharper Lawyer      To read Part II, click here

Imagine the following scenario: A potential client consults with you to seek an opinion as to the merits of a potential cause of action. You tell him or her that you don’t think that there is a case but that because of your lack of expertise in this area of the law, he or she needs to consult with another lawyer “promptly”. You do not follow up with correspondence rejecting the matter. The person then consults with another attorney (after expiration of the statute of limitations) and finds that the case is (or was) actually very good.

You are then slapped with a malpractice suit for giving bad advice regarding the viability of the claim.  Plaintiff’s testimony that you neither revealed your lack of expertise nor recommended consultation with another firm is found to be credible at trial. Even though no retainer agreement was signed and no fee was paid, the existence of an attorney/client relationship is found and you are liable for the client’s failure to pursue legal representation.

This is basically what happened in Togstad v. Vesely, Otto, Miller & Keef, 291 N.W.2d 686 (Min. 1980). While the case is not new, the lesson remains the same: ALWAYS SEND A WRITTEN NON-ENGAGEMENT LETTER WHEN YOU ARE NOT FORMALLY RETAINED. (Thanks to Ben Wasserman for bringing this case to our attention in his October 15, 2009 post – Liability to Prospective Clients: The Non-Engagement Letter .)

A non-engagement letter is ALWAYS necessary where a lawyer never actually undertakes representation of a potential or even existing client in a specific matter. This precept remains true whether the decision not to establish a formal relationship is that of the attorney or of the client.

In drafting the letter, the following topics need to be covered:

1. Describe the client’s matter.

2. Clearly state that the lawyer has not been engaged by and does not represent the client in the matter.

3. Recommend consultation with another attorney

a.  Consider that if you recommend an attorney or give a specific time frame, it could
be found that you rendered legal advice.

4. State that you did not conduct research or investigation and are therefore not in a position to render an opinion as to the merits of the case.

5. Inform the client that there could be time limitations that apply to the matter and that failure to comply with these limitations will be detrimental to the case.

6. Send the letter return receipt requested and keep the letter along with the return receipt on file.


Effective use of retainer, non-engagement and termination letters (AND MUCH MORE!) will be covered in depth at the upcoming CLE session: Take Charge of your Life – Personal and Professional presented by Cynthia Sharp on March 14.  – This program has been completed. Thanks to Cynthia Sharp and to those in attendance.

To read Part IIclick here

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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