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A non-engagement letter is a formal declaration that an attorney will not be providing services to someone who approached him or her for a consultation. For the would-be client, the non-engagement letter serves as a notice that if legal representation is needed, it will have to be sought from another lawyer. Attorneys issue such letters to clarify their legal relationship to the people they interact with so that there can be no future confusion.
The origins of issuing standard non-engagement letters lie, perhaps unsurprisingly, in a lawsuit. A person who believed that she was the victim of medical malpractice went to an attorney to consult him about which steps to take next. The attorney was not a malpractice specialist and decided not to take the case, telling her to consult another attorney. The woman waited until the statute of limitations had expired to do so and the new attorney told her he could not provide assistance with the medical malpractice suit. She sued the first attorney, claiming that he should have made the statute of limitations clear and that because he didn't, she was unable to seek a legal remedy for the malpractice. She won the suit, and lawyers everywhere started using non-engagement letters much more regularly.
In a non-engagement letter, an attorney informs the subject of the letter than he or she is not being accepted as a client. A reason such as lack of expertise in a given area of law may be provided. The attorney documents the return or destruction of any materials provided by the client and indicates that no bill is due because no services have been provided. A warning about statutes of limitation and time sensitive material is provided and many attorneys also include resources to help people find new attorneys, such as a phone number for the bar association.
Someone who receives a non-engagement letter has no legal relationship with the attorney who sent it and never did. This distinguishes such letters from documents sent by lawyers who are terminating the attorney-client relationship. In the case of a non-engagement letter, the attorney may not be able to take on new clients or may have reviewed the matter and determined that a different attorney would be a better choice for the client.
Attorneys retain copies of non-engagement letters they send to people as a means of protection. The letter documents that the subject was advised that the attorney was not offering professional services and that a warning about statutes of limitations was provided.
I think that a non engagement letter is just as important as an engagement letter in order to have a successful client and limit legal malpractice claims by those unwanted clients that you didn't even know were your clients.
It is the job of the lawyer to be clear about the circumstances and conditions of representations- this is often a daunting task when conversations are struck up over happy hours and other out of the office encounters
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