Why attorneys get sued when they've
done nothing wrong
Time and again we see attorneys get sued by their clients when the attorneys did
not commit malpractice. It is not uncommon for allegations of malpractice to be
brought against an attorney when the attorney does not believe (s)he was hired to
complete the specific task at issue. All too often, unfortunately, the attorney either
has no engagement letter at all or has one that lacks detail about the scope of the
specific undertaking. To us as insurance professionals, these types of claims are
heartbreaking (contrary to common belief, claims adjusters are human and do have
hearts!) because they are so easily avoidable.
Under ABA Model Rule 1.5(b), the scope
of representation shall be communicated
to the client preferably in writing
(emphasis added). See your specific state's
Rules of Professional Conduct to ensure
compliance with your ethical duties.
Few attorneys would challenge the fact
that new clients require engagement
letters. When it comes to existing clients,
however, attorneys tend to have multiple
excuses for not taking the same
precaution.
Frequently attorneys will complain that
they couldn't possibly send an
engagement letter for each and every
assignment they receive, as it would take
up too much of their time. They believe
that having a general representation
agreement in place is sufficient. And they
think it will be awkward to send a new
engagement letter to an existing client for
each matter assigned. Well, they are
wrong on both counts.
In the case of an existing client, it is helpful
not to think in terms of formal engagement
letters but more client-appropriate ''scopeof-work confirmations.'' An existing client
doesn’t need a 20-page tome that
reiterates every term of your agreement.
However, as a risk management best
practice, any matter that has a billing
number should have some documentation
of the engagement and scope of work
associated with it.
The engagement can be in the form of a
template where you simply fill in the
scope for each additional assignment. It
can be sent as an informal letter or as an
e-mail. It merely needs to outline the
scope and request a confirmation of
understanding. So, for instance, the email
template might look like this:
Scope of Work Confirmation
This e-mail will confirm the scope of
work for our new engagement. All the
terms and conditions of our original
engagement letter with you and/or
your company will apply to this new
matter. We thank you for choosing
ABC Law Firm for your legal needs.
New Scope of Work:
[Description goes here.]
Please confirm that the scope of work
as outlined above is accurate and
consistent with your understanding of
our engagement.
A short, templated communication such
as this is effective and also efficient
enough to discredit any ''too busy'' excuse
an attorney may offer for not outlining the
scope for each assignment. This e-mail
should take just a few minutes to
compose and send.
This abbreviated communication is
essential even when a general
representation agreement is in place.
Usually, a general representation
agreement does not go into detail for
specific tasks. That is where the scope-ofwork confirmation comes in, allowing
clarity to be established around each
discrete job. We have even seen claims
stemming from general representation
agreements where the attorney was
unaware that the client expected them to
be addressing an issue. Therefore, we also
recommend that as part of your general
representation agreement you state that
''No work will be performed without a
written request to do so.''
The scope-of-work confirmation also
undermines the argument that a new
engagement letter will feel awkward with
existing clients. Because you likely have a
more familiar relationship with an existing
client, an e-mail is bound to feel more
appropriate than a formal engagement
letter. You are offering superior customer
service by communicating to your client
your understanding of what it is exactly
that they want you to do. This allows any
misunderstandings to be discovered and
addressed before you perform and bill for
work the client does not want. At the same
time, the confirmation e-mail may help
reveal tasks that are in fact expected but
that you missed during your initial
discussion with the client. In short, the
e-mail allows this meeting of the minds
which is essential to strong and lasting
client relationships.
Continued next page
©2014 Swiss Re. All rights reserved.
We see too many claims that could have
been avoided or mitigated through simple
documentation. By using a basic template
for existing clients that outlines the scope of
the assignment and requires a
countersignature, attorneys can ensure a
meeting of the minds without spending
much time.
For more information, please contact:
Beth Whitney, JD
Loss Prevention Consultant
Swiss Re Corporate Solutions
222 West Adams, Suite 2300
Chicago 60606, USA
Direct: 312 821 4136 Fax: 312 821 4099
E-mail: [email protected]
Swiss Re Corporate Solutions offers innovative, high-quality insurance capacity to mid-sized and large multinational corporations across the globe. Our offerings range from standard
risk transfer covers and multi-line programmes, to highly customised solutions tailored to the needs of our clients. Swiss Re Corporate Solutions serves customers from over 40 offices
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The material is for general information purposes only and is not to be relied upon or used for any particular purpose. Swiss Re shall not be held responsible in any way for, and
specifically disclaims any liability arising out of or in any way connected to, reliance on or use of any of the information contained or referenced in this article. The information contained
or referenced in this article is not intended to constitute and should not be considered legal, accounting or professional advice, nor shall it serve as a substitute for the recipient
obtaining such advice.
Insurance products are underwritten by Westport Insurance Corporation, a member of Swiss Re Corporate Solutions.
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