One of the latest things in the practice of law is the unbundling of services. It is merely an example of how the practice has changed in the delivery of services. A lawyer can provide just certain parts of a project, a la carte, and others can do different things at different prices in a competitive market. Of course, the key to any limited-scope arrangement or discrete task representation is the documentation of exactly what you will do. Model Rule 1.2(c) allows this limitation, but in the case cited in Thompson Hine LLP blog (Karen Rubin February 22, 2018) the documentation better be clear. In cases against lawyers, there will always be a tacit implication that the lawyers do this for a living, and if not clearly documented by them, the client’s perceptions will prevail over the lawyer’s testimony as a general proposition.
More on point for practicing lawyers is the reminder that each case you take needs that documentation. Even if not required by your jurisdiction’s rules, you should always have an engagement letter. It is your take home exam and you should be able to get it right. Aside from clearly spelling out your charges, and conflicts, and routine obligations, you must absolutely protect yourself with a clear explanation of what you are doing, or not doing, for the client.
Look at it in this simple way. The first paragraph of any engagement letter should thank the client for the representation. You should then say we have been engaged to do “ABC”, and sometimes even not what you are engaged to do. Scope of work can change later, but it can easily be noted in any clear communication that you have changed our engagement letter to include “DEF”. Likewise, in this first paragraph, you should clearly identify who the exact client is in the representation. Force yourself to be sure you know who you are representing. Is it the company (i.e., not the officers or Board) or whomever. This initial paragraph uses good manners and basic marketing, but clearly communicates your tasks and who exactly you represent.
These key statements will protect you later when the client’s memory has faded and the case has slipped sideways. It is likewise important that lawyers not lose their way in the course of the representation and forgot who their client is in the representation. This standard practice at the beginning of every file will help you meet your duties and will protect you later when everyone claims something to the contrary. Exhibit “A” for you will likely be your engagement letter if done properly.
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