AttPro Tip of the Month
Engagement Season: Is It Time to Recommit to Your Engagement Letter?
According to various wedding industry sources, the greatest number of engagements occur between November and mid-February, commonly referred to as “Engagement Season.” Approximately 40% of couples get engaged during this time of the year when family and friends can celebrate the happy couple over Thanksgiving weekend or Christmas vacation. Although we have moved past Engagement Season for the year, a prospective client may still be interested in engaging you, albeit a much less romantic gesture. So, when that potential client pops the question – Will you … be my lawyer?” – you need to be ready with a robust engagement letter.
As a seasoned practitioner, it is easy to be married to your engagement letter form. After all, it has served you well for many years without incident. However, like any form, it must be specifically tailored to the client and matter. What’s more, recent implementation of artificial intelligence tools into your practice warrants adding a new provision to address their use. By adding this provision – and revisiting best practices for client engagement – you can ensure you present your client a strong engagement letter that clearly defines the scope of representation and protects you. Consider addressing the following matters in your letter before beginning what is hopefully an easy working relationship:
AI – The use of artificial intelligence in legal practice remains a trending topic – and perhaps the greatest possibility for a legal malpractice claim. How you use AI at your firm dictates the details of the provision you should add to your engagement letter. Consider incorporating the following language if it reflects your use of AI:
The Firm may use artificial intelligence (“AI”) tools to conduct legal research, draft documents, and review case-related information and documents. AI tools will be used under the Attorneys’ supervision with any cost efficiencies passed on to the Client. The Firm will not input confidential client information into an AI platform that will be stored or accessible for future AI training, unless the platform is used in a private and secure setting. The Firm agrees to comply with all applicable ethical rules and confidentiality obligations when using AI on behalf of the Client.
Client expectations – In addition to defining the scope of work you will perform for the client, the engagement letter is the perfect opportunity to set expectations, so you and your client are on the same page from the outset of the representation. For example, you may require that they keep you advised of their contact information and timely assist with discovery responses. You may also advise them concerning their use of AI related to the case. Note that the court in United States v. Heppner recently confirmed that a client’s use of an AI platform was not protected by the attorney-client privilege and thus subject to discovery. Check out Attorney Protective’s engagement letter form here for suggested language you might incorporate in your engagement letter on this issue.
Termination provisions – While no one wants to think about the end of a relationship when it is just beginning, be sure to include a termination provision in your engagement letter or fee agreement so the terms of your potential withdrawal or termination are clearly defined. A pre-nup of sorts. By stating the venue and basis for recovering attorney’s fees in the event of a dispute, you can streamline any potential collection matter you may initiate – after the statute of limitations for a legal malpractice claim has expired of course.
Once you’ve added these provisions, be sure to reconsider certain key language you might typically gloss over when you’re eager to secure new business. First, ensure you have properly identified who you are representing. This might seem like an obvious point, but it may be critical to later show you represent the LLC, not individual members. Second, carefully consider the scope of representation and be sure you specifically state it in your letter. For example, if there is pending litigation, you could easily include the cause number. Or if you are preparing a will or handling a divorce, be as specific as you can in terms of what work you will be performing on the client’s behalf. And just as important, clearly exclude the work you are not agreeing to handle. For example, perhaps the representation ends after trial, and a new agreement will be required for an appeal.
An engagement letter is typically the first document your client will review and sets the tone for the relationship. Take the time to discuss the terms of the agreement and address any concerns your client may have. Hopefully, this conversation is the beginning of an attorney-client version of Happily Ever After.
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