Lawyeringlaw.com Tip of the Month

Tip for September 2018

Identify the scope of your engagement in writing

Legal malpractice claims sometimes arise out of a client’s claim that the lawyer agreed to provide certain legal services, when the lawyer did not provide them because the lawyer did not believe that it was part of the engagement. In Kansas Public Employees Retirement System v. Kutak Rock, 44 P.3d 407 (Kan. 2002), the court determined that the law firm’s engagement to represent an investment-counseling company in making an investment and performing any due diligence required by the investors did not include a review of the financial advisability of the investment, noting that the engagement letter did not include those services. The court recognized that the scope of a lawyer’s duty is commensurate with his undertaking. If you agree to represent a client, do not leave the engagement open-ended, as that enables the client to claim that the client reasonably believed that the lawyer was going to handle more than the lawyer believed he had agreed to handle. Also, it is the duty of the attorney to inform the client of any aspect of the client’s claims that the lawyer will not be handling, such as possible third-party actions related to the Workers Compensation claim that the lawyer agreed to handle. Keefe v. Widuch , 747 N.E.2d 992 (Ill.App. 1 Dist.,2001). Rule 1.2 of the Rules of Professional Conduct in many states permits a lawyer to limit the scope of the legal services to be provided, but only if the lawyer complies with the disclosure requirements of the Rule. In In re Bancroft, 204 B.R. 548 (C.D. Ill.,1997), a bankruptcy lawyer charged five debtors a $150 fee to represent them in their bankruptcies, but did not appear with them at the first meeting of creditors. In each of those cases, the court granted the Trustee’s applications for fee refunds to the clients because the lawyer did not make the proper disclosures to the clients regarding his limited engagement. If you limit the scope of the engagement to less than the entire legal matter, then comply with the rules by fully disclosing the limitation to the client, preferably in writing.