The Attorney's Office Tools What is ample time? Unfortunately, this question cannot
be answered simply and there is no black-and-white response. Rather, each case must be evaluated on its own merits depending on the complexity of the claim, the complexity and amount of work to be completed before suit can be filed, and the cost of proceeding. Of course, after investigating the matter, should you
elect to continue representing the client, an additional retainer letter should be sent outlining not only your further engagement, but the terms of that engagement.
What if I elect not to accept the case? Letters of non-engagement can also be appropriate
where, after consideration of the claim, you elect not to pursue the case. Te letter should clearly advise the client that you or your law firm have determined not to undertake the matter. Te letter should further advise the client that there may be other lawyers in the jurisdiction that have a different view and, thus, urge the client to consult with other competent counsel as soon as possible. Te non-engagement letter may also advise the client that certain rules or statutes may govern the deadline by which a claim must be brought and that, if not filed before the deadline, the claim may become stale. If it is impossible for you to reach a conclusion as to when limitations or other time constraints will expire due to the limited information available to you, the non-engagement letter should state, at a minimum, that the client should consult with other counsel as soon as possible. If, on the other hand, it can be determined when the claim will expire, the letter may state the deadline and advise the client that failing to consult with other counsel sufficiently before the deadline may place the client in the position in which the claim cannot be effectively presented, if at all, before the claim is time- barred. Letters of non-engagement should be maintained in a
general correspondence file so that they are readily accessible should the non-client dispute the time or substance of the rejection either to the Attorney Grievance Commission or in a civil suit. Te letter should be sent to all persons with whom the lawyer consulted, not merely one member of the family or corporation in a representative capacity with the expectation that the representative member will share the decision with the others on a timely basis. If you are consulted with at length by telephone, it is recommended that during the conversation you obtain an e-mail address to which you can confirm the non-engagement. Remember, however, that e-mail communications should be as professional, clear, and concise as your written communications.
Conclusion In addition to those circumstances in which retainer
agreements are required by the Rules, even when not mandatory, retainer agreements provide an efficient and effective means of confirming the terms of the attorney- client relationship. Well-written and thorough retainer agreements can not only define the terms of the lawyer’s fee and the client’s obligation to timely pay the fees as earned, but can also protect the lawyer in defining the scope of the representation, whether outside counsel may be consulted or engaged, and the services that will not be undertaken or included within the fee structure. Furthermore, engagement letters may be used to clarify that the lawyer is only retained to investigate a claim or that the lawyer has concluded that he/she will not undertake the requested representation. In any circumstance, a clear and concise engagement letter may serve to limit the lawyer’s exposure from the confusion and distrust that may arise when the attorney-client relationship becomes strained or, worse yet, when the relationship entirely dissolves in a less than amicable manner. As a basis from which your case specific retainer agreement can be prepared, please visit
www.marylandassociationforjustice.com/trialreporter for two sample retainer agreements.2
Biography Stacey A. Moffet, a partner at Eccleston & Wolf, has
been representing lawyers in civil and disciplinary matters since she joined the firm in 1995. Stacey’s practice largely involves both professional malpractice defense and insurance coverage, providing both coverage opinions to insurance company clients and representing those clients in coverage disputes. Al Frederick started his career at Eccleston & Wolf in
1974 as a law clerk. Al is currently a senior member of the firm. He concentrates his practice in the defense of professionals, primarily attorneys, accountants and design professionals. He writes and lectures frequently on risk management and avoidance for a variety of Bar Associations in Maryland. He was recently named one of Maryland’s “Top 50” Super Lawyers. Eccleston & Wolf can be found at
www.ecclestonwolf. com or reached at (410) 752-7474.
2 Tese are sample retainer agreements and must be revised to reflect the facts and circumstances surrounding each specific retention. Moreover, the supplied sample agreements have not been updated since April 2000 and, thus, you must review the applicable ethical rules and case law to ensure that there have been no significant changes in either ethical practice or legal requirement, prior to using any portion of these sample agreements.
Trial Reporter / Spring 2010 25
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76