How Engagement Letters Mitigate Claims

How Engagement Letters Mitigate Claims

February 5, 2019 David Lipson

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Lawyers’ Toolkit 4.0: A Guide to Managing the Attorney-Client Relationship

 

Introduction

Documentation of the attorney-client relationship represents a critical risk control technique. CNA has developed the following Lawyers’ Toolkit 4.0: A Guide to Managing the Attorney-Client Relationship to assist attorneys in creating documents that will enable them to better manage their interactions with potential and actual clients. Documentation of the scope of the representation and the mutual responsibilities of the attorneys and their clients can often be a deciding factor in determining the responsibilities of both parties. These sample documents are designed to establish client expectations, reduce client misunderstandings, improve client communications, and provide opportunities for additional services. The use of these documents may not prevent legal malpractice claims, but can support a stronger defense in the event a claim arises.

 

This Guide includes the following sample documents:

  • 20 engagement agreements
  • 2 awaiting further action letters
  • 2 non-engagement/declination letter
  • 4 conflict of interest waivers
  • 1 closing matter/disengagement letter
  • 20 Other Engagement Letter Clauses
  • 2 termination/withdrawal letters

 

Several of the sample documents include language addressing joint or dual representations and discuss prospective and actual conflicts of interest. Sample conflict of interest waivers are included for reference. Attorneys also should consider applicable legal ethics rules as well as the relevant risks associated with joint or dual representations prior to accepting such engagements. Joint or dual representations should be undertaken only with full disclosure to clients regarding the relevant risks, and only when such representation is in the best interests of the clients. From a professional liability perspective, engagements undertaken where a conflict of interest exists are inherently risky, irrespective of obtaining signed conflict of interest waivers.

 

In addition, the first three sample engagement agreements include draft language for contingent fee, hourly fee, and flat fee arrangements. Attorneys should incorporate the appropriate fee-agreement language from one of these first three sample engagement agreements when using one of the seventeen other engagement agreements included herein.

 

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