This week’s “tip” regarding the area of “administration,” which is one of the five elements that make up every business in the world, is about non-engagement letters.

I can almost hear the collective groan! Some of you are probably saying, “you’ve got to be kidding me, do you mean to tell me that we actually need to cover our backsides when we are turning down a matter?” The answer is: you better believe it!

Non-engagement letters first came on the horizon in my practice about ten years ago. I was actively preparing for a seminar on law office administration and came across an article about a lawyer in Minnesota who had been sued for legal malpractice. The facts of his case were “eye-popping” to say the least. The case involved a woman who went to the attorney to consult with him about a medical malpractice case. He listened to her story, and told her that he did not work in the area of medical malpractice, and so she would have to go to see another attorney. Some period of time went by and yes, you guessed it, enough time had gone by that the statute of limitations had run on her case. She called another lawyer who did in fact work in the area of medical malpractice and set up a meeting to go in and see that lawyer about her medical malpractice case. She went in to see that lawyer and the lawyer informed her that unfortunately, the statute of limitations had run on her claim. You can imagine the look on the second lawyer’s face when the lady responded that it was strange because the first lawyer had not mentioned any statute of limitations, as he realized she might have a strong legal malpractice claim against the first lawyer. The end result of all this was a $215,000 judgment against the first lawyer for failing to tell the client about any statute of limitations that would apply to her medical malpractice claim.

In first realizing that non-engagement letters were going to have to be used, it became very clear that giving someone any information specifically about a statute of limitations would be potentially devastating if you were wrong with regard to the proper statute. So it became clear that telling someone that a statute of limitations applied but indicating to them that you did not have any specific information to give them an exact date on the statute of limitations was probably the better course of action.

The following template with regard to non-engagement letters was then developed:

Thank you for the opportunity to discuss your legal matter. This letter is to confirm, however, that you have not yet retained The Wirken Law Group, P.C. to represent you or to take any action on your behalf in this regard.

(Time Sensitive Paragraph below)

You should be aware that any matter you may have may need to be handled in a timely fashion. It is very important that you take steps to determine if there is a time issue that may apply to your potential matter. Once the time expires, any matter you may have may be adversely effected. Due to the limited information provided us, we are unable to advise you as to any time issue date you may have.

(Statute of Limitations Paragraph below)

You should be aware that a Statute of Limitations may apply to any claims that you may have. It is very important that you take steps to determine the application of any Statute of Limitations, which may apply, to your potential claims. Once the Statute of Limitations expires, any claim you may have will be forever barred. Due to the limited information provided us, we are unable to advise you as to any specific Statute of Limitations date.

(Keep Paragraph Below)

We encourage you to call our office and set up an appointment as soon as possible if we can be of further assistance. We will, however, take no further action until we hear from you.

(Kick Paragraph Below)

We encourage you to call the Kansas City Metropolitan Bar Association Lawyer Referral Service at 816/221-9472 or to consult with an attorney of your choice as soon as possible.

We wish you the very best. If you have any questions, or if we can ever assist you in any way in the future regarding any legal or personal matter, please do not hesitate to contact us.

As you can see from the information in the template that I have developed, you want the non-engagement letter to be as friendly as possible, and to let the client down gently so that if they ever have another legal matter they will be inclined to contact you to see if you would be available to handle that matter for them.

One of the “golden” things about non-engagement letters is that it does bring closure to matters and sometimes also jogs the client’s memory that they really need to get in to see you about this matter before some date runs and their matter has been compromised.

It is very important that this letter go to the right person and under some circumstances you have proof that it has been delivered. Usually certified mail, return receipt requested will accomplish this.

I have sent non-engagement letters by regular mail, certified mail, fax, e-mail, and have utilized all of the above for the same matter where it appears appropriate.

In the “Re: ”section of the letter, I always put out exactly what I believe that the matter is that they have contacted me about such as “client last name, first name v. Dr. _________ - Potential Medical Malpractice.” You can see the first paragraph is a short statement simply indicating you are thanking them for discussing their legal matter with you but that they have not hired you to do anything on their behalf.

The second paragraph deals with time sensitive matters. Not every matter has a statute of limitations and so some type of a paragraph is needed in order to deal with those items that are time sensitive. Sometimes matters have both a time sensitive aspect and a statute of limitations and so I have occasion to use both the time sensitive paragraph and the statute of limitations paragraph. Note the last sentence in each of the paragraphs about whether it is time sensitive or statute of limitations talks about having only a limited amount of information available and thereby being unable to advise the client as to any specific time issue date or statute of limitations date. Remember, if you give the prospective client an actual date, you better be right!

As you can see, the statute of limitations paragraph is pretty straightforward and indicates a certain amount of urgency about determining the application of any statute of limitations without being unduly an alarmist. The next two paragraphs are very important, the first being what is called the keep paragraph and the second what is called a kick paragraph. The keep paragraph encourages the prospective client to call your office and to set up an appointment so that the law firm can be of further assistance. It is amazing to me the number of times that a matter will sit for a short period of time until a non-engagement letter goes out, at which time the client is reminded to call you and you are able to actually take on the legal business that you have originally been contacted about. The kick paragraph gives the prospective client immediate access to a lawyer through a lawyer referral service for a nominal fee and thereby does not simply leave the client “hanging out to dry.”

Every single matter in our office that is not taken on within a thirty-day period gets a non-engagement kick or keep letter. Those matters that we are interested in taking on we send a non-engagement keep letter to. Those matters that we are not interested in taking on we send a non-engagement kick letter to.

These non-engagement letters also become part of the Prospective New Matter reports that we discussed in an earlier article. You will remember that the Prospective New Matter report is a form that we use to keep track of the matters that are in process with regard to being brought into the office. We never file a Prospective New Matter report to our closed prospective new matters file until a non-engagement letter has been done on the prospective new matter. Remember that the eleventh commandment for a lawyer is “thou shalt cover thy afterside!”

As a recap regarding Prospective New Matter reports, let’s talk about what will end up in your file if the client actually hires you to do a piece of legal business. Remember that the very first thing on the Notes, Facts, Memorandums backboard will be the Prospective New Matter report that you took when you were first contacted about the first piece of business. If that form resulted in a client hiring you, you probably will not have a non-engagement letter as part of your file. On the other hand, if you were not immediately hired, you probably will have a non-engagement keep letter as the very first letter on your correspondence backboard. The second letter should be a letter to the party referring you the piece of legal business thanking them and the third letter should be the Engagement Letter you have with this new client. On the other hand, if the matter is never taken on by your firm, when you file the Prospective New Matter report in your closed PNM file, you will have the Prospective New Matter report, a non-engagement letter attached to it that could either be a keep or a kick, a letter to the party referring you the legal business and any other documentation you have been supplied in order to review taking on the piece of legal business. If you are finding that you are not writing non-engagement letters to people, I hope that the foregoing $215,000 incentive gets you started immediately. As is the case with most of the suggestions that I am giving in the “tips,” not only are these tips excellent ways to continue to project effort to people and show your professionalism, but in many cases, they are excellent ways of covering yourself for any potential claims that you may have for any alleged failure to give proper information to prospective clients. I believe any time that you can couple good marketing and professionalism with good law office management and malpractice avoidance, you have an incredible win-win situation you should take full advantage of. Even though many people’s original thoughts with regard to non-engagement letters is negative in the sense of not needing another thing to do in order to practice law effectively, when you analyze non-engagement letters in the parameters I have discussed above, I think you will see that what first appears to be just another added item on your long list of things that you need to do, becomes instead a very good tool in marketing, management and administration. If nothing else, the “closure” factor of being able to have something that actually brings a matter to an end and allows you to get onto whatever the next thing is that you are going to do, is a tremendous boon to your practice psyche. If you are not using non-engagement letters, start now!

Next week’s article is about tickler card systems that deal with statute of limitations and other important dates. There are hard copy tickler card systems and there are electronic systems. We are going to talk about both of these. No file can be opened without some type of reminder date given with regard to matters involving the file and the next several weeks we will be talking about methods of continuing to always be reminded of what it is you have to do involving various legal matters in your office so that you can keep the legal ball rolling. I think you will find many of these suggestions very interesting. Additionally, I think you will find my suggestions to be quite simple with regard to how these systems can be set up and maintained in order to continue to allow you to stay on top of the legal matters that you are handling. I have been repeating a phrase recently that struck me as being incredibly relevant to all of these articles about law office management systems. The comment is:

“What is law firm nirvana - the answer is, when those who are not anal become as anal as those who are anal.”

Systems allow you to build in the “anal” factor and make things happen both automatically and with a system of checks and fail safes, and allow you to be much freer with regard to how you go about practicing law on a day-to-day basis. Remember, “when the space is ordered, you are free to live creatively.” When you keep your office organized, you are able to spend more time on doing what it is that you uniquely do as a lawyer, which is to work on the day-to-day legal diagnosis, legal prognosis and legal prescription for treatment that is your stock and trade as an attorney. Set up the systems, let the staff work the systems, and that lets you work the cases.

Talk to you next week!

Jim Wirken is a civil trial attorney and the Chairman of the Board of The Wirken Law Group in Kansas City.