We have discussed the importance of using an engagement letter to clearly specify to whom you owe professional loyalty in a matter; in other words, specifying who is your client. Equally useful as a risk management tool—and as a helpful task management system—is clearly defining the matter you are undertaking and clarifying both what your client should expect and what they should not expect to fall under that matter.
In some ways, defining the scope of work is trickier than identifying the client in an engagement letter, primarily because we can’t anticipate exactly what any individual matter will entail. While this is particularly true in litigation representations, it is a challenge in just about any matter.
So, how can a lawyer write something that will provide reasonable guidance and understanding for the client and help to manage the risk of having a client call you to task for failing to do something you never intended to take responsibility for in the first place? The key is to, at a minimum, specify those things that you can anticipate could be misunderstood.
One way to anticipate potential misunderstanding about the scope of a representation is through experience. Just like you know that when more than one person walks into your office you will need to be sure all of the parties understand to whom you owe loyalty, you also know through experience that certain types of representations present opportunities for confusion about the scope of work. Personal injury attorneys know that most clients without explanation likely won’t differentiate between your taking on their claim with the insurance company and taking on an actual litigation against the tortfeasor or their insurance company. If you are planning on stopping short of filing suit, you need to tell your client up front.
You can also anticipate some potential misunderstandings by listening carefully for clues when first talking with your client about the matter. Are they asking about issues that are beyond what you want to take on or beyond what would normally fall within the type of representation being considered? Do they seem to be regularly adding on more and different ideas throughout the conversation such that they stray from what you see is the central problem to be addressed? If so, then be certain to clarify in your engagement letter that you won’t be addressing those other issues or actions.
Alternatively, you can design the representation to work in stages, giving the client an opportunity at each stage to accept expansion of the engagement. This type of structure naturally leads to circumspection of the scope of work by clearly delineating the beginning and end of each step or portion or subject of a representation.