What Is a Legal Representation Letter?
A legal representation letter fulfills three basic functions: First, it communicates to the document custodian that you, as a lawyer, are acting under the authority granted to you in your retainer and that you now stand in your client’s shoes. Second, it identifies and describes the class of documents to which you seek access. Few document custodians will allow you to look at anything before you tell them what it is that you want to look at. Third , it establishes that you are a lawyer or a law firm that intends to represent a prospective plaintiff in an anticipated case. Law firms and lawyers do not ordinarily write such letters to secure documents that bear no relationship to a viable claim that they may one day bring on behalf of their clients.
Essential Elements of a Representation Letter
The foundation of any legal representation letter template is a detailed statement of the identity of the contracting parties, the nature of the engagement, the scope of the engagement, the terms of the engagement, and the responsibilities of the parties. Identification of the parties to the engagement is the first component of the engagement letter. The parties must be clearly identified, usually by the name of the business or individual to be represented and the name of the business entity employing the lawyer or law firm. As the parties to the engagement letter, the lawyer and the business are presumed to have an attorney-client relationship as stated in the document. When a business or organization is directly involved as a party to the engagement letter, the engagement letter must identify the named persons who will represent the company for the specific matter. The engagement letter is not a retainer agreement, nor is it usually a legally binding agreement. The document records the understanding that the parties choose to address the impact of a legal circumstance on the business, and the letter is often not intended to codify the attorney-client relationship. A confidentiality agreement or non-disclosure agreement is generally included as part of the engagement letter template, but the existence of the attorney-client relationship between the business and its lawyer is evidence sufficient to create a duty of confidentiality. The letter will usually also articulate that the lawyer has a duty to report material changes to the truthfulness of the information provided by the parties and that the lawyer must notify the law firm’s professional liability insurance carrier if there is or appears to be any basis for a claim against the firm. The scope of the representation is the second critical component of an effective legal representation letter. This provision covers what services and commitments the law firm will make to the client. The scope gives specifics with regard to the goals of the targeted legal issue, and for many lawyers it is one of the most important components of the document. Some law firms have made the mistake of broadly defining the scope of representation and leaving open to interpretation the extent to which they intend their services to be comprehensive. This can turn out to be a liability rather than an asset if it is later determined that the law firm was negligent in failing to take action within a particular context because it was outside the scope of the representation. The third element of a legal representation letter template is the terms of the engagement. This sets out the conditions of the engagement, including how long the engagement will last, who will pay for the services, and how the payment should be remitted. Sometimes payment for legal services is left open-ended with the expectation that the services will last until the matter is closed. Many law firms prefer a fixed term for the engagement letter, and specify the duration of the engagement at the time of contract. The final key component of a legal representation letter template is the responsibilities of the parties to the engagement. The letter may set out the expectations of both the business and its lawyer, including responsibility for providing material necessary for the engagement and the frequency with which the client must check in with the lawyer. The risks of not using a pre-defined engagement letter template to establish the boundaries of a legal representation are generally far greater than the cost of spending a relatively minor amount of time to create the document. While the basics of the representation letter are not legally required, the document will always be a record of the actions, changes, and expectations between the law firm and the client, and the absence of a clear statement of the terms of the engagement can result in poor outcomes. With a basic engagement letter template, the document will already be in place should the circumstances of the case change and the terms of the representation need to be altered.
How to Write a Legal Representation Letter
When drafting a legal representation letter for your clients, you must first determine why you need to notify the other party of your representation. If there is litigation involved, that can include notifying the parties of your client’s actions, such as responding to pleadings, discovery, or other documents, and sending notices of deposition or the like.
Regardless of your purpose for the letter, you will want to use clear language and preserve the letter’s formality. While you should strive to be personal and friendly with your clients, it is best to keep the letter formal, rather than conversational and casual.
If this is your initial representation letter, be sure to include a brief introductory paragraph explaining what your client’s matter is about. You can then state that your client wishes to notify them of their representation. Tell the party simply that you represent your client and will represent your client in all matters relating to this action. Make sure to explain any possible outcomes of the underlying matter, such as settlement, litigation, mediation or arbitration. You should also provide any details you have on the timeline for the matter.
If you are providing an update to a client you worked with previously, you can forego the lengthy explanation should you feel it is unnecessary. If you are simply continuing upon a previous engagement, all you need to do is state that you are notifying the party of your representation.
Keep in mind that representation letters need to be precise to ensure compliance with court rules if your representation letter relates to a pending litigation. For example, the Arkansas Rules of Professional Conduct (Rule 4.2) require that all communication between parties and their attorneys be done through counsel, which your letter ensures, while California Business And Professions Code § 6068(d) permits the attorney to communicate with the "client", "party", "adverse party", "opposing party", "adverse party’s attorney", or "the adverse party’s representative" but does not require the attorney to communicate with such party if they have legal representation, which your letter also ensures.
Pitfalls to Avoid
Common mistakes to avoid with legal representation letters include the use of broad and vague language, leaving out important provisions, and failing to seek the necessary approvals from client and conflict counsel. Missing our on obtaining the benefits of a legal representation letter template, such as timeliness, organization and the basis for fees, can introduce serious problems for a law firm’s management.
Legal Representation Letter Template
The template below is for a legal representation letter:
[Your Name/Your Firm’s Name]
[Your Address/Your Firm’s Address
Your Address/Your Firm’s Address
City, State Zip Code
City, State Zip Code
Your Email/Your Firm’s Email
Phone
Fax]
Date
[Other Party’s Name]
[Other Party’s Address]
[Other Party’s City, State Zip Code]
[Other Party’s Email/Other Party’s Firm’s Email]
[Other Party’s Phone/Fax]
Re: [Client Name]
Legal Representation Letter
Dear [Other Party’s Name or Firm’s Name]:
This letter is to confirm that [Client Name] has retained the legal services of [Your Law Firm’s Name] to represent [him/her/them] in all actions relating to [describe action (litigation, arbitration, etc.)]. [Client Name] has elected not to retain counsel for purposes of any appeal. If you have not already done so, please direct all future communication relating to the above matter to my attention.
Regardless of whether this letter is served on you pursuant to applicable law, it constitutes a demand for preservation of any and all documents, electronically stored information (ESI), email, information and records in the custody, possession, or control of you and/or your clients that relate or refer to [Client Name], [his/her/them/] the above-referenced matter or action, including but not limited to [identify matters about which you want production (ex. medical records, contract drafts, etc.)]. Likewise, please provide a copy of any such applicable insurance policy whether primary, excess or umbrella, and that which may be applicable. Please be advised that under controlling state, federal, and local law and rules, it is your present and continuing obligation to preserve all of the aforementioned. The duty of preservation of such material extends to all physical evidence, ESI, hard drives, tablets, servers, computers, cell phones, audio, video, visual , photographs and other media in general that may contain information that is relevant to any issues in the matter.
If any party or non-party on behalf of you or your client fails to comply with this duty of preservation, or if evidence is altered, deleted, or in any other manner tampered with to the possible prejudice of [your firm/client], fair insurance coverage may be forfeited. Additionally, such conduct may result in judgments, sanctions, or default orders being entered against you or your client. In addition to internal communication, many standards exist for collecting, analyzing, copying, and maintaining electronically stored information (ESI) to ensure that it is preserved. Such standards dictate a specific protocol to prevent tampering. Again, such a violation may have repercussions as noted above. Accordingly, it would be prudent to consult an attorney with experience in insurance coverage litigation regarding the best practices for preserving and collecting such evidence during litigation.
If you have already received a letter such as this one or it is your general practice to keep this type of material retained, please ignore the previous paragraphs and continue doing what you have previously done.
Please also be advised that any and all communications with regard to the above matter are deemed to be protected by attorney-client and/or attorney work product privileges, the rights to which are hereby claimed.
Further, if you or your client intend to record any telephone conversations with [client] or with any agent of [firm name] or [client] regarding the above matter, you are hereby placed on notice that such recording will not only be objectionable to [client], but [firm name] and/or [client] reserve the right to institute legal action seeking prevailing party attorneys’ fees when authorized by statute or court rule.
If you are not the intended recipient of this correspondence, please notify the undersigned as quickly as possible, return the original to this office, and destroy any copies you may have.
Sincerely,
[Your Signature]
[Your Printed Name]
Modifying the Template for Your Practice
The provided template serves as a general guideline; your specific circumstances may warrant changes or additions. Carefully review the sample representation letter and adapt any elements that are not applicable or relevant to your case. Take note of the specific contextual elements and terminology applicable to your situation. Pay particular attention to how detailed you need to be in terms of assessing case facts and law. Some jurisdictions may have case law that addresses, specifically, the items of coverage available as well as the fees owed to your firm. Review the posted material carefully and make any necessary modifications to your letter. The goal is excellence – a "standard" letter just doesn’t cut it.
With that in mind, the following suggestions may help you get started on creating a customized version of the standard representation letter template:
1. Modification based on case type or jurisdiction: Some cases may be deemed to have "professional liability" in certain jurisdictions and in others those same cases do not qualify as "professional liability" when applied within the context of those jurisdictions standards. Look for extremes in the context of coverage. Simply changing a few words may not be enough to address a specific situation. Example: if the issue evolves into a Social Security coverage issue, specifically state, "if coverage exists under our E&O policy, any action or actions taken by our firm is to be paid under our firm’s E&O policy". In these cases, consideration should be given to stating on the representation letter itself the way the firm and its’ insurer view the case and the presumed responsibility of the insurer for the fees and expenses. That way, there will be little to no question that the specific facts of the case are properly applied to the specific policy language applicable to the specific policy.
It must be noted that in these extreme cases, an attorney should consider other options before agreeing to represent the client.
2. Modification based on client/attorney relationship: The representation letter as a template proposes keeping any fees that may be charged at the ordinary rate for the work identified on the representation letter. Some legal representatives may be able to move from hourly rates to a flat fee for the representation simply because there is no way to judge the amount of time that may be required or how the work effort may evolve. While it may make sense in this template to offer the client the choice of paying an advance "retainer" at the regular hourly rate or to pay costs only, that may not be fair or appropriate in all situations. If the work being done cannot be estimated accurately or fairly, then it should be stated in the letter that payment for the legal work will be set at its usual rate even if a flat fee is also available.
3. Modification based on context or specific case: This template was drafted to offer clients a range of coverage options and to provide for attorney fees to be paid by the insurer where coverage exists. The template owner determined that the best and most comprehensive way to do this was to offer a "menu" approach. This offered the client flexibility and discretion in its choice. But this does not mean that this "menu" approach is applicable to every situation or should be found in every representation letter. The attorney is urged to: advise if the firm is taking a case on a contingent fee basis, and if so, to add to the template just prior to line 4 a new line that says CES & Associates risk its own fees and expenses in the event apologies are not made to the State Bar and its board. or If a firm takes a case and is being paid directly by the client because the client is not covered under the firm’s policy, the attorney should consider leaving out any reference to fee payments, even under a contingency agreement. It is difficult to explain to the client why it is responsible for paying the attorney if there is coverage but not why it is responsible if coverage is not available.
Again, read the specific professional duty of care language applicable to your firm and consider those elements within any custom letter. Stick to the requirements of your jurisdiction when drafting a representation letter.
Frequently Asked Questions
Frequently Asked Questions About Legal Representation Letters
What happens if my representation letter is deemed unenforceable?
If a representation letter is found to be unenforceable, it simply becomes a letter of good July 1 unless a court rules otherwise.
Can I change my mind about the representation letter and refuse to work with someone who signed it?
You have the right to refuse to work with anyone with whom you do not want to work . You just may not be able to recover fees for work you already performed.
Is there anything else I should know?
Remember that a representation letter doesn’t provide its own protection, so it is still best practice to involve your legal representation in the matter to ensure your protection.
