Malpractice, Small Law Firms

The Practice: Do You or Your Client Understand the Scope of Representation? (Part I)

Be forewarned: I’m citing case law here, so if that scares you, stop reading now.

There are two things lawyers are doing wrong when it comes to scope of representation, as in, “What is your obligation to this client?”

The failure to comprehend this critical concept begins when you are retained, and rears its head again when the representation is over.

So let’s talk about the dumbass things you are doing to complicate your life, and how to fix them.

First, understand that there are few things more important than a “scope of representation” clause in your retainer agreement….

Case in point: SCB Diversified Municipal Portfolio et. al. v. Crews & Associates et. al., 2012 WL 13708 (E.D. La. Jan. 4, 2012).

The Crews firm was hired on a residential community project and was sued for malpractice.

“The Court reviewed the engagement letter and found that the letter was clearly drafted, providing a successful defense to the allegation of a duty of due diligence for an environmental report. The Court also rejected the client’s assertion that the law firm had invalidly limited its representation without consent, finding instead that the law firm had properly created a narrow and clear scope of representation in the engagement letter.”

By the way, I got that case from the “Lawyers for the Profession” Alert from Hinshaw & Culbertson, one of the premier firms representing lawyers in malpractice cases. They also have some cool lawyers there, and if you want to subscribe to their “alerts,” know that they don’t bombard you with emails.

End of Hinshaw commercial.

Retainer Agreement, engagement letter, whatever you want to call them. Have one.

Just don’t make it a bunch of much-too-long, written “understandings” of too many things that the client isn’t absorbing at the initial consultation. These documents are not tools to attempt to impress the client with your ability to expand on: “You are going to pay me this, and I am going to do this, and I’m not paying for this, and if anything else comes up, we’ll talk about a separate retainer/fee/cost, and I’m not guaranteeing anything or giving you money back, and we have no other agreements, so sign here.”

My retainer agreement is two pages, double spaced. Never been an issue. Every so often, I change a phrase, or add or delete something, but it never gets longer. You know when you go to the doctor for the first time, and after three pages of “have you ever been asked this many questions,” you think to yourself, “I’m sick. I have my insurance card and co-pay. I just want to see the doctor and get some meds.” That’s how your clients feel after they meet you, want to pay you, and you throw a way-too-long and embarrassing contract in front of them. So cut the crap.

One unbelievable question I was asked recently (by a 25-year Biglaw lawyer) (yes, they ask me questions) (stop crying) was whether to have the client sign the “engagement letter.”

In whatever document you give to your client to sign, you must make clear what you are doing for them, otherwise, they will assume that other things are included, and that can become costly. You may be retained to do various tasks for a client, and there is an understanding (agreement) that anything they ask you to do as their outside “general counsel” is billed at a certain hourly rate, but that’s different.

What I’m talking about is the client that hires you to handle a contract dispute for their company and in the interim, is sued on the same contract by another party, in another state, and assumes that the fee they paid you covers that as well. Simply putting the style of the case and a case number or description of the matter will help you when you discuss with the client the additional fees that will be needed, or when you tell the client you are not going to handle the matter for whatever reason.

For those of you that don’t do retainer agreements in every case, every case (and there are a lot of you), you are morons and deserve the heartache that comes with that stupid, sloppy practice.

The second issue regarding scope of representation is what you actually do at the end of the case. We’ll discuss that next week. I know you can’t wait.

Brian Tannebaum will never “get on board” at the advice of failed lawyers who were never a part of the past but claim to know “the future of law.” He represents clients, every day, in criminal and lawyer discipline cases without the assistance of an Apple device, and usually gets to work (in an office, not a coffee shop) by 9 a.m. No client has ever asked if he’s on Twitter. He can be reached at

(hidden for your protection)

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