Use non-engagement communications to avoid misunderstandings and provide clarity

These communications are essential for clarifying the relationship and preventing misunderstandings that could lead to disputes, ethical dilemmas, and could give rise to a claim. Proper use of non-engagement communications helps manage client expectations and ensure that both parties have a clear understanding of their professional relationship—or lack thereof.

To illustrate the importance of non-engagement communications, consider the following scenarios:

Scenario 1: The initial consultation without engagement

Jane visits a law firm for an initial consultation regarding a potential consumer law matter. After discussing her case with the lawyer, she does not give specific instructions. Jane states that if she decides to proceed with her case, she will contact the lawyer. After two weeks and a follow-up email from the lawyer noting the upcoming time limitations in issuing the proceedings, there are still no instructions from Jane.

Scenario 2: Lawyer's decision not to take the case

Ali meets with a lawyer to discuss a complex legal issue. Whilst discussing the details in the meeting, the lawyer decides that they cannot take Ali's case because the case is not within the firm's area of expertise. The lawyer explains the firm’s position to Ali and the meeting concludes.

Scenario 3: Informal advice at a family gathering

Sarah is at a family barbecue with her cousin, Mike, who is separating from his domestic partner. Knowing Sarah is a lawyer, Mike asks her some questions about family law. Sarah provides some general information but does not intend to formally represent Mike.

In each of the above scenarios it is easy to see how the client might misunderstand that the lawyer does not act for them. To avoid confusion, in all of these scenario types, each lawyer should follow-up and conclude the matter with a non-engagement communication.

Effective non-engagement communications must contain specific elements to ensure clarity and avoid any potential misunderstandings. By including the essential details, lawyers can provide comprehensive and clear information, reinforcing the non-engagement message, and providing an enduring record of the discussion. Below are the key elements that should be included in any comprehensive non-engagement communication:

1. The time, date and location of the meeting: Clearly state when and where the interaction took place. This includes the exact date and time, providing a precise reference point for both parties. For example: "This letter confirms our discussion on 1 June 2024, at 10:00 AM at our offices."
2. Detail the subject matter: Summarise the main topics discussed during the meeting. This should be a brief overview of the subject matter to remind the individual of the context without delving into specific details. For instance: "During our meeting/conversation, we discussed what would be required to prepare a Binding Financial Agreement…”. This outlines the issues as you understood them and confines the scope of what was covered.
3. Outline any legal information or advice given: Restate and qualify any legal information or advice that was provided during the consultation/conversation. Note that the information was based on the instructions/information received at that time. This helps to clarify what was discussed and ensures that the individual understands the context in which the information was given. For example: "You were informed about the general requirements for compliance under the new tax regulations, but no specific legal strategy was advised."
4. No ongoing relationship: Clearly state that no legal services have or will be provided and that you are not retained as their lawyer.
5. Refer if appropriate: In circumstances where the lawyer decides not to take on a matter, it may be appropriate to refer the client to another practitioner with expertise in the area. Lawyers can refer the client to the LIV’s referral service for lawyers with expertise in the relevant area. If the lawyer refers the client directly to another practitioner, the lawyer should make it clear that it is a referral, not a recommendation.

To assist in producing and managing effective non-engagement communications and to help ‘get off risk’, practitioners should ensure the following:

1. Timely communication: Send non-engagement letters or messages as soon as it is clear that you will not be representing the client. Prompt communication prevents misunderstandings and ensures that the individual seeks representation elsewhere if needed.
2. Clear and concise language: Use straightforward language to explain that you or your firm are not/will not be representing the individual. Avoid ambiguous phrases that could confuse the recipient and ensure that there is no doubt as to your position.
3. Documentation: Keep file notes of the meeting and copies of all non-engagement communications sent. This may include copies of text messages or other any less formal types of communication. This documentation can be vital if there are any future disputes about whether the individual was informed that the lawyer was not representing them. Return any original documents provided by the client.
4. Use precedents: Develop standard templates for non-engagement communications. These precedents can ensure consistency and completeness, saving time and reducing the risk of omitting important information.

Non-engagement communications play a vital role in legal practice by clearly defining the boundaries of the lawyer-client relationship. They help protect both the lawyer and the individual from misinterpreting the situation. By promptly and clearly communicating non-engagement, lawyers can maintain professional integrity and foster better client relationships.