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Publication Date

12-1999

Document Type

Special Contribution

Abstract

In recent years, lawyers have turned increasingly to written contracts, usually called "engagement letters," to memorialize their professional representations. This practice grows absent specific directives requiring such writings, apparently deriving from professional preference rather than mandatory rule. It grows also despite scant attention paid by law reviews and bar publications. Only infrequently do publications appear noting this practice or offering advice on drafting engagement letters. Even continuing legal education programs give them only occasional attention.

One of the most ambitious treatments of engagement letters came in 1997 from the State Bar of Georgia in the form of a report from its Corporate and Banking Law Section entitled Report on Engagement Letters in Transactional Practice ("Report"). The Report encourages regular use of engagement letters, suggests an appropriate scope and format, offers an extensive menu of sample provisions, and discusses the ethical and legal principles that underlie its suggestions. Although the Report originated with and was directed toward Georgia transactional lawyers, most of its suggestions may be generalized to other jurisdictions and practices. Indeed, its general nature and content should be useful to lawyers in all types of private practice. One purpose of this Article is to bring the Report's suggestions to the attention of this broader audience. ...

Part I of this Article has the substance of an "apology," as the Greeks might have used that word, directed particularly to those readers who are interested in the history and the rationale of the Committee's engagement letter project, especially its suggestions for format and specific provisions.

Part II is directed to readers who wonder how engagement letters fit within the laws of contract and fiduciary relationships and whether engagement letters make practical sense for the lawyer and the client. For many lawyers, entering into a written contract with a client raises serious questions about the nature of the professional relationship and the purposes to be served by a writing. At bottom, the question becomes whether this added formality presents a salutary development in that relationship.

Finally, the Appendix sets out brief excerpts from the Report and includes limited commentary on the purpose of the suggested engagement letter provisions. To preserve trees and readers' patience, the Report does not appear in its entirety. Those who wish to know more will find the complete Report accessible in electronic form from the State Bar of Georgia.

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