Engagement Letters: Some Ethical Considerations
By Mitchell L. Lathrop
Professional ethics require that at the outset of the attorney-client relationship, the client is made aware of the nature and scope of the attorney’s responsibilities, usually through an engagement letter. Few things are as important in today’s law practice as engagement letters. Inadequate or poorly drafted engagement letters can spell real problems for the lawyer. Boilerplate terms can also be a source of trouble for the lawyer or firm utilizing them. Limited engagement letters are problematic when the limited scope is not followed. When the lawyer exceeds the scope of a limited engagement, the limited engagement letter will not protect the lawyer in subsequent legal malpractice proceedings. (Astral Brands v. Boyd, 2021 U.S. Dist. LEXIS 114224, 2021 WL 2448358 (N.D. Ga. Apr. 28, 2021). As the court pointed out in Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983, “An attorney’s duty to his or her client depends on not only the existence of an attorney-client relationship, but also the scope of the duties assumed by the lawyer.” Where an agreement for legal services violates the Rules of Professional Conduct, it may be declared unenforceable.(Chambers v. Kay (2002) 29 Cal.4th 142 (enforcement of a fee division agreement undertaken without written client consent held unenforceable on the ground that the arrangement violated the Rules of Professional Conduct).)