How to Stop Having to Write Declination Letters
By Mark Bassingthwaighte
Ok . I get it . How many malpractice claims are there that have been the result of a failure to write a declination letter ? You know the one that says thanks , but no . Truth be told , not many , although we have seen a few . Some are conflict problems because the creation of this letter is what normally would trigger the entering of the names of declined clients into the conflict database . When the letter isn ’ t written , the names can ’ t be entered and a conflict problem sometimes arises down the road . Others are a bit more concerning and represent the real reason why these letters should be used . Sometimes a nonclient who did speak with you eventually sues you for failing to do something . They allege you were indeed their attorney , at least as they understood it . If you have no documentation that they weren ’ t , you may have a problem because these kinds of word against word disputes don ’ t always end well for the attorney .
Excuses vary . Declination letters are viewed as a waste of time , unnecessary in most matters , irrelevant , or too costly in terms of attorney and staff time . Sometimes , they are just simply overlooked . Again , I get it . The good news is that declinations can be documented in another more efficient way . The letter approach isn ’ t the only option .
Many attorneys use some version of a client intake form during an initial prospective client interview . If you do use this form , consider making a few modifications to it that will help document the engagement or declination . Once you finish the initial interview , you will give the prospective client a copy of this modified client intake form and then you and your prospective client should sign both the copy and the original . If you and your prospective client decide to create an attorney / client relationship , you will then ask the client to also sign a fee agreement . This leaves the client with a copy of the client intake form and the written fee agreement . If you decide not to form an attorney / client relationship at the conclusion of the initial consultation , the prospective client will sign only the original and copy of the client intake form and receive just a copy of that document .
ALPS Risk Manager Mark Bassingthwaighte , Esq ., has conducted over 1,000 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management and technology . Check out Mark ’ s recent seminars to assist you with your solo practice by visiting our on-demand CLE library at alps . inreachce . com . Mark can be contacted at mbass @ alpsnet . com .
In order to use your client intake form as the method of documenting the engagement or declination , you might add to the beginning of this form language that reads something like this :
The purpose of our initial consultation meeting is for me to determine what legal services ( if any ) our firm might be able to provide to address your legal concerns , as well as to provide an indication as to what your cost might be if you decide to hire this firm .
Our initial consultation meeting does not give me enough time or information to provide you with a definite legal opinion . The short time allotted for this meeting makes it impossible for me to properly and fully assess any legal matter that you might have .
Regardless of whether you and I create an attorney / client relationship today , the attorney / client privilege protects all information that I gather during this meeting and record on this client intake form . Rest assured that I will hold that information in strict confidence .
At the end of the client intake form , you might add something similar to this :
Please Read Carefully and Sign Below
Now that we have concluded our initial consultation , if you agree to hire me as your attorney and I agree to represent you , we will both sign a Contract for Legal Services . That Contract will state the terms and conditions under which this firm will provide you with legal representation .
If I am willing to represent you and you decide not to sign a Contract for Legal Services today , I strongly urge you to do one of two things : ( 1 ) schedule a follow-up appointment with me at the earliest possible time ; or ( 2 ) immediately consult with another attorney in order to ensure that you fully protect your legal rights . Unless and until both of us sign a Contract for Legal Services , neither I nor this firm represent you on the matters described in this client intake form or discussed during this initial consultation . No action of any kind will be taken on your behalf until you authorize us to do so by our both signing a Contract for Legal Services .
If I do not agree to represent you , then we have not formed an attorney / client relationship , even though we had this initial consultation . Neither this firm nor I will represent you on the matters set forth in this client intake form or discussed during this initial consultation . If your legal matter involves a potential lawsuit , it is important that you realize that you must file your lawsuit within a certain period of time , known as a Statute
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