In the past, we have urged the use of "non-engagement" letters to stave off malpractice claims; that is, a letter written to a prospective client returning the file and declining employment. It wasn't just idle talk or empty words. The Georgia Appellate Court has held that such a letter can relieve an attorney from a malpractice claim.
Hansel, Post, Brandon & Dorsey v. Fowler, 288 S.E. 2d 277 (Ga. App. 1981)
In this legal malpractice action, former client brought suit against a law firm when her claim became barred by the statute of limitations. A Georgia Appellate Court has held that a letter written by the firm terminated the attorney-client relationship, therefore, the law firm owed no duty to the former client and there was no breach of professional responsibility.
Plaintiff employed the law firm to prepare a new will for her after her husband's death. She also discussed with the law firm the possibility of having them make a claim on her behalf for wrongful death. Soon after the initial visit to the firm, the firm sent her a letter which read in part:
"As to your possible claim against Seaboard Coastline, I have found the following: (1) You may have a claim under either the Georgia Workman's Compensation Act or under the Federal Employer's Liability Act; (2) there are time limits under both of these statutes in which a claim must be filed. The time limit may be one year from the date of death, and therefore, time is of the essence in any action you may take; (3) Hansell Post represents the L&N Railroad which is owned by Seaboard Coastline. Therefore, we cannot represent you in any claim that you might have against Seaboard Coastline."
The trial court denied defendant's motion for summary judgment. Upon appeal the appellate court reversed, holding that the attorney-client relationship, if one was ever created, was terminated by the defendant's non-engagement letter to the plaintiff. The court, in its opinion, also noted that the plaintiff consulted with another attorney shortly after receiving the defendant's "non-engagement" letter and that consultation was prior to the expiration of the limitations period.
In a recent TLIE case, our insured tentatively accepted a personal injury case and later evaluated it as having limited value. Our insured returned the file to the client and told the client of his decision not to accept the case. The former client sued our insured for negligence after the statute of limitations ran. Due to the absence of a "non-engagement" letter from our insured to his former client, a weak personal injury claim resulted in a substantial loss for professional negligence on the part of the attorney.
