A disengagement letter guards against legal malpractice
Say you expected your attorney to represent you in a real estate dispute, but he declares he is no longer providing representation to you. He insists that your attorney-client relationship has ended.
This is news to you. You had originally retained the attorney to draft a real estate contract, and you had no idea that his services were no longer available to you.
The disengagement letter
Written agreements are important in the relationship between an attorney and his or her client. For example, an engagement letter should specify what the attorney will and will not do for the client and what the monetary compensation will be. Equally important is the disengagement letter, which should be clear in confirming that the attorney-client relationship has come to an end. An entity that provides liability insurance for legal firms recommends that lawyers provide documents such as fee agreements, engagement letters and disengagement letters to all clients.
The American Bar Association recommends that lawyers formally disengage by notifying the client – via email or certified mail – that the attorney-client relationship has been terminated. However, lawyers cannot simply wash their hands of a client who had engaged them. For example, the ABA says that an attorney who disengages may have an obligation to advise the (former) client of an upcoming filing deadline or expiring statute of limitations.
Conversely, you have the right to fire your attorney. But you should formally disengage with that lawyer before hiring a different law firm for the same legal matter.
The view of the appellate court
In recent years, several appellate courts have heard a number of cases involving the absence of disengagement letters. In a malpractice case, the court looks at the actions of an attorney based on material facts. At issue is whether there was a termination of the attorney-client relationship at a certain point in time in a clear and unambiguous manner, or if the relationship continued or was in limbo. The court wants to know if there was a written disengagement letter sent to the client or other clear communication to that effect.
If you were waiting for your attorney to assist in the real estate dispute (or any legal matter), unaware that he was no longer working on your case or representing you, you could have legal remedies. A lawsuit for legal malpractice suit may be in order, or a court might compel the attorney to fulfill professional obligations to you under the original engagement agreement.
It is important to get to the bottom of an attorney-client relationship that has gone awry. You may be eligible for monetary compensation if your lawyer has been negligent in failing to properly inform you that his legal services on your behalf had ended.
On the front end, it is important to always have a formal, written agreement that confirms the attorney-client relationship and clearly lays out the fees and services.
Source: The American Bar Association (americanbar.org)