I’m sure it happens more often than one would think.  You engage the services of an attorney.  You pay him or her a retainer as they requested so they could start working, but at some point you and the attorney have a falling out.  Maybe they think they did everything they should and the project is complete.  Maybe you think they overcharged you for the services performed and there is additional work yet to be performed.  No problem.  You’ll just take a look at that engagement letter to resolve that dispute.  Oops – no engagement letter?  Shame on the attorney for not preparing one and shame on you for not insisting on one.  What did you think, "I’m hiring them as my attorney – they are a professional and my fiduciary – surely I’m not going to have an argument with my own attorney?"  Think again.

Some attorneys look at engagement letters as additional time they do not want to spend on your file since they cannot bill you for their time in the preparation, negotiation and execution of that letter.  That said, as an attorney, there is no excuse (at least no-good excuse) for not having a signed and dated engagement letter in the new client’s file. At least in the case of a fee dispute with a client, why would the attorney working without an engagement letter want to risk the possibility of having the quoted language presented to the jury deciding that dispute by the attorney representing the client?

If the attorney is going to at least have some discussion with the client about the fee arrangement, it only makes sense that he ought to also have a clear understanding about what they are being asked to do and how he intends to do it.  All of those discussions should be embodied in a written instrument signed by both the attorney and the client.  As the client, you have the right to ask the attorney to prepare that document if they do not mention it to you.  And if they do not even mention it, think seriously about your choice in attorneys.

Assuming you have an attorney that uses engagement letters, what do you, as the client, do when presented with that letter? Just like any legal contract, review it and make sure it touches on the following topics (there may be others, but these are the basic):

engagement – an acknowledgment that the attorney is being hired

conflict of interest – the attorney is aware of none

services – at least a general description of what the attorney will do

client’s cooperation – what the client will do

legal fee, retainer and expenses – they should be clearly explained

payment obligations of client – clearly defined and what happens if not

venue – where any dispute concerning the engagement letter will be heard

document retention – what happens to client’s documents upon completion

confidentiality – attorney explains the privileged and confidential relationship

E-mail policy – agreement of client to use and acknowledgment of the risks

signature – dated and signed by the client (client retains a copy)

Some attorneys use a simple one page document, others use a multi-page document or letter.  I prefer the multi-page letter as it is more cordial in nature and I simply cannot cover the above topics in a one page document.  From the attorney’s perspective, it is important to draft engagement letters that are clear, understandable by the client, and in compliance with Rules of Professional Conduct.  The client should demand this. 

Hiring a lawyer without a written engagement letter is much like driving your car without your seatbelt fastened. 

This way emotion stays out of it and you know your charges.  There are attorneys that I have known that almost charge you to breathe in their offices.  Stay away from them and having an engagement letter will help you to avoid ridiculous charges.