Risk Update

*engagement Letters — The Importance of Disengagement Letters

Just honored as the 2022 recipient of the Michael Franck Professional Responsibility Award, Lucian Pera reminds us: “Ethics: The Power of the Disengagement Letter

  • “Most lawyers understand the importance of engagement letters. Sometimes they’re even required by our ethics rules or our law firms. But fewer lawyers understand the power of a simple letter or email to a client saying our representation is over—the disengagement letter.”
  • “In 2001, Plum Creek Timber retained a large, national law firm, Holland & Knight LLP, to work on real estate matters. Over the next 14 years, the firm worked on about 20 matters for the client. Those concluded in 2015.”
  • “In 2015, Plum Creek merged with Weyerhaeuser, which then engaged the law firm on a Florida utilities matter. That engagement ended on June 14, 2017. Two days later, a careful firm lawyer emailed Weyerhaeuser…This should bring the matter to a close. It has been our pleasure to represent Weyerhaeuser. Please let us know if we can be of further assistance. The lawyer’s Weyerhaeuser contact responded by email, ‘[i]t is nice to bring this to a close.'”
  • “Fast forward about a month. Weyerhaeuser revealed an ‘off-gassing’ issue with fire-resistant joists it produced. They allegedly emitted dangerous levels of formaldehyde. Another client of the firm, Dream Finders Homes, had purchased some of these joists. They asked the firm to advise on legal options.”
  • “In running a conflict check, the firm found its prior—and very recently concluded—Weyerhaeuser work. The firm concluded that, under Rule of Professional Conduct 1.9(a) concerning former clients, it was free to represent Dream Finders adverse to its former client Weyerhaeuser because Dream Finders’ joists issue was not ‘substantially related’ to any of the firm’s former Weyerhaeuser work. The firm took on the Dream Finders matter, and sued Weyerhaeuser in December 2017.”
  • “…Weyerhaeuser was unhappy with the firm’s involvement and moved to disqualify it. The district court’s ruling on that motion offers a potent reminder of the power of a disengagement letter.”
  • “Most importantly, the district court quickly determined that Weyerhaeuser must be treated as a former client of the firm, not a current client. After all, the firm’s very clear email (quoted above) established that the firm’s representation was at an end. The firm’s clear written disengagement allowed the court to reach this decision quickly and definitively.”
  • “As a practical matter, if the firm had not sent a disengagement email here, the district court would have been required to take on a detailed factual analysis to determine whether Weyerhaeuser was then a current or former client.”
  • “The court would have looked at all kinds of facts surrounding the matter to decide whether, in the few weeks between the utility order attached to the email and the firm’s taking on the Dream Finders matter adverse to Weyerhaeuser, the attorney-client relationship with Weyerhaeuser had continued. A client in Weyerhaeuser’s position often then offers affidavit proof that they had continued to believe—quite reasonably, they might say—that the firm still represented them. That type of proof can be hard to overcome.”
  • “My advice: Write from a place of gratitude… Do you have to write, ‘This matter is now over, and we are no longer your lawyers’? Or ‘Please consider yourself disengaged. This attorney-client relationship is terminated’? Of course not.”
  • “System Solutions Can Help… Knowing that won’t always work, also think about a policy that identifies all open matters in your office that have had no activity in, say, four or six months, and then asks the lawyer responsible for these matters to close them—and send a form disengagement letter.”