Everyone wants to avoid disputes with clients, and a good way to do that is with an engagement letter that lays out the agreed scope of your legal services. Disagreements over the intended parameters of the representation can be ugly — and they can land you in disciplinary trouble or lead to a malpractice claim.
But with engagement letters, it’s not just what you say — it’s what you do. Even a good letter limiting your representation to a specific task can lead to problems if your later conduct doesn’t line up with the agreement. An Ohio lawyer’s license was recently suspended for a year (stayed on condition) when his actions led his client to reasonably believe he would do work that wasn’t described in the engagement letter — and he failed to do that work.
In Cleveland Metropolitan Bar Ass’n v. Fonda, the client’s truck had been repossessed. The lawyer agreed to write a letter to the dealer aimed at getting the truck back or getting a refund — and an engagement letter set out his agreement with the client to do just those tasks. The dealer failed to respond, and after some delay the lawyer told the client that he was still working on the case and that it would be “headed to court soon.”
The lawyer also took an additional $100 filing fee from the client. He never presented a new agreement to the client that would cover the additional work; he also never cashed the filing-fee check or did any further work on the matter. For the next two-and-a-half years, the matter just sat there, with no communication between the lawyer and the client.
The Ohio Supreme Court found that the lawyer failed to reasonably communicate with the client and that he also failed to pursue the client’s objective — consisting of the extra work — with reasonable diligence.
Under Ohio law, the client’s “reasonable belief” is the key to whether you have formed a client relationship in a particular matter, which can impose duties on you.
Even though the lawyer in the Fonda case tried to limit the scope of his representation in a written agreement, the court held that “his actions … conveyed a different message.” By telling the client that the case would soon go to court, accepting the filing fee and not entering in to a new agreement for the extra work, the lawyer led the client to reasonably believe that the lawyer was going to do that extra work.
The take-away from the Fonda case: be aware that if you go beyond the scope of your engagement agreement with the client, your conduct may alter the limits of the agreement, raising additional duties that you may never have intended to take on.