Risk Update

Clients, Judges, Conflicts & Risk Management — On Client Non-engagement Declination Letters, Judicial Stock Dealings Database Now Online

Posted Dan Bressler

“How to Stop Having to Write and Send Declination Letters” —

  • “Declination letters, also referred to as non-engagement letters, are those letters that say, “thanks, but no.” Some lawyers use them religiously and others not so much. Those in the not-so-much crowd apparently just don’t see the need and the excuses vary. Such letters may be viewed as unwarranted in most matters, irrelevant, or not cost-effective in terms of the necessary time and energy to prepare.”
  • “If you count yourself as a proud member of the not-so-much crowd, you need to hearthat those excuses are just that, excuses. Declination letters have their place as an effective risk management tool. As such, they should never be dismissed out of hand because the failure to write and send one of these letters can pave the way for a viable malpractice claim.”
  • “While I will readily admit that the number of malpractice claims that arise as the result of a failure to write and send out a declination letter isn’t large, this doesn’t mean we never see them. We certainly do. Sometimes these claims are the result of a missed conflict of interest. In short, the creation of a declination letter was what normally would trigger the entering of the name of a declined client into the conflict database. No letter, no name entry, no memory, and no hit when a name search is eventually run. Whoops.”
  • “More frequently, the claim involves an allegation of failing to move a matter forward in some fashion. Most concerning are the times when the claim is made after a statute of limitations date has run. Of course, the subject lawyer will always state there was never any obligation to do anything further and the prospective client will always claim otherwise. Here’s the problem. If the lawyer is unable to provide documentation that an attorney-client relationship never was established, which is exactly what declination letters do, this lawyer will be facing an uphill battle.”
  • “Lawyers often use a client intake form during the initial consultation. If you do so as well, consider making a few modifications to this form that will allow you to use it to conveniently document an engagement or declination. At the conclusion of the initial consultation, give the prospective client a copy of the client intake form, and then you and your prospective client will sign both the copy and the original.”
  • “And then at the end of the client intake form, you would add something similar to the following… 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… By signing below, you acknowledge that you have received a copy of this completed client intake form. Your signature also confirms that you understand that I have not been hired as your attorney and that this firm will take no further actions on your behalf.”

“US Courts Begin Posting Judge Stock Disclosures Online” —

  • “An online database for tracking stock and other financial disclosures by federal judges went live Monday, a congressionally mandated site aimed at making information about courts more accessible to the public.”
  • “The database includes annual financial disclosure reports and periodic disclosures for transactions over $1,000 for federal judges for 2021 and 2022. It comes two days ahead of a deadline set by Congress to create such a database as part of a law, the Courthouse Ethics and Transparency Act (P.L. 117-125), enacted in May. “
  • “The database was praised as progress by advocates, who also pointed out shortcomings like the number of steps users must take to access records. Currently, 600 of about 2,400 reports have been filed, with more coming, a spokesman for the Administrative Office of the US Courts said.”
  • “Congressional efforts to require the judiciary to create a financial disclosure database came after the Wall Street Journal reported that more than 130 federal judges failed to recuse in cases where they or a family member had a financial stake.”