Here's another example of why it is so vitally important to define the scope of work you intend to perform for your clients and to put it in writing. Often, the failure to put something in writing occurs when the scope of the engagement is limited - but that's the time when it's even more crucial to establish the limitations on your responsibilities to the client.
Law.com posted an article on August 30 that demonstrates what can go wrong when you fail to clarify your responsibilities to the client in writing. The article discusses a Washington, D.C. litigator in hot water on a malpractice claim because she failed to take certain actions on behalf of a client. The litigator claims that the engagement was limited to writing and filing a complaint on the client's behalf, but there is no engagement letter, retainer agreement or other writing that memorializes this agreement.
It is not unusual for lawyers to find themselves in a quandary when a client arrives on their doorstep at the eleventh hour looking for representation, as this one did. According to the article, the litigator was approached on the eve of the expiration of the applicable statute of limitations. She agreed to prepare the complaint, but allegedly told the client that he would have to find representation elsewhere for the remainder of the case. The client claims he had no knowledge that the lawyer did not intend to represent him throughout the litigation.
The case got more complicated from there, when the lawyer attended a conference in court, then recruited another lawyer to take over the case, but attended a second conference with new counsel and a meeting with the client. The lawyer claims she made it clear that she would no longer be representing the client, and that the new lawyer was taking ove. Yet still, there was no writing memorializing the status of the original lawyer in relationship to the case. The client claims he thought both attorneys were representing him.
Now the lawyer is facing a $5 million malpractice suit because service on one of the defendants was never completed.
This lawyer got burned because she thought she was doing someone a favor, but never memorialized the scope of the agreement in writing.
The lesson here is to make your intentions clear in writing with your clients in an engagment letter or retainer agreement. When you terminate an engagement with a client, even if that termination is the result of your work for the client being 'finished,' send the client a closing letter that clearly states that you have completed your representation for the client.
Jeez, this is so important, and so basic, I can't even tell you. And, it doesn't matter WHAT job you have. It should be at the front of EVERY "job manual" in every occupation there is.
The sad thing is, I think each of us has to get burned, and burned badly, before we learn to do this. The good news is, it sinks in, and it sinks in deeply, after that first big burn. And usually, you don't get slapped in the face with a $5 Million law suit.
Nowadays, I don't even go to the fridge without a written agreement. On the other hand, it's a pretty smokin' fridge. Nevertheless, I have learned my lesson. But thanks for the reminder. . .we could all do to remember that the butt you cover first should be your own (unless you're a stripper, and you're working a pole, but that's another story for another day).
Warm Regards,
james.
Posted by: James | October 06, 2007 at 10:03 AM