This is the second in a series of posts by our Pro Bono Coordinating Attorney Michael Lukens providing tips and pointers on how attorneys taking pro bono cases from CAIR Coalition can be more efficient and effective while servicing their clients. In this post, we explore best practices in drafting engagement letters for pro bono clients.
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At the outset of any legal representation, a well-crafted engagement letter is vital for setting client expectations and avoiding misunderstandings for all parties. This is especially true for pro bono clients, who are often unfamiliar with legal proceedings and may be in a time of personal upheaval. Anxious for legal help, pro bono clients are apt to sign an engagement letter without a deep read into the letter’s terms and conditions.
It is incumbent on the pro bono attorney to ensure that the client understands the contents of their engagement letter. Doing so can be tricky. To help, we offer the following pieces of advice:
Know Your Audience
The cardinal rule for drafting pro bono engagement letters is to know your audience. An engagement letter will be of little use in setting expectations if the client does not understand text. Draft and present the engagement letter in a manner that ensures the client can appreciate its content. To so do, ask yourself the following questions:
- Is my client an adult or a child?
- Is my client comfortable reading in English?
- If not English, what language is best for my client?
- How effective are my client’s reading comprehension skills?
Use the answers to these questions to direct how you draft your engagement letter so that your client can understand what they are signing.
Employ Client-Friendly Language
Once you have thought about your audience and determined what issues (age, language, education) are at play, use the following tips to ensure that the engagement letter is right for your client:
- Avoid Legalese. There is no ethical or contract rule that requires engagement letters or contracts to be chock full of legal terms and Latin verbiage. Ditch the “hereins” and “contingent upons” for plain, everyday text. With no payment terms, there should be no concept in an engagement letter for a pro bono client that cannot be expressed simply and without jargon.
- Make it Kid-Friendly. With clients that are minors, do not be scared to tap into your inner child and write an engagement letter that uses kid-friendly language to explain legal concepts. For example, you may want to address client confidence in terms of “secrets” and “stories” that your client can tell you and that will not be shared with others.
- Choose the Right Language. If your client only speaks Spanish or Amharic or Mam, do not use an English engagement letter without translation or having an interpreter explain the letter in the client’s native language.
- Use a trusted translator. After spending time crafting a well-tuned engagement letter, the last thing you want is to find that your intended text was lost in translation. Avoid the headaches and use a translator or interpreter familiar with legal issues and always talk through the concepts in the engagement letter with the translator.
Steer Away From Commercial Engagement Letters
Too often it is the practice of attorneys and law firms to take engagement letters used for sophisticated, commercial clients and repurpose the letter for pro bono clients. While repurposing commercial engagement letters is easy (and the letter has likely been vetted), doing so ignores that pro bono clients are almost never equipped to fully grasp the verbiage of a commercial engagement letter. The better practice is to take your approved commercial engagement letter, extract the concepts you feel fit the pro bono case, and convert them over to plain language.
Pay Attention to Scope
Ask a pro bono attorney and a pro bono client when their legal relationship ends and you are likely to get two very different answers. Pro bono clients tend to think of their attorneys as their champion and may look to them for advice and assistance beyond the scope of what the attorney envisioned. Avoid any misunderstandings about the scope of your representation by being very clear and precise in the engagement letter. It is always better to start small in scope and expand (in writing) if needed.
For example, if you are representing a pro bono client for their asylum filing but do not intend to handle subsequent adjustment of status or appeals, do not state the scope as: “We will represent you in your immigration proceedings.” This is too vague and indeterminate. Instead, say: “We will represent you in your asylum proceedings before the immigration court but will not handle any subsequent appeals or administrative filings.”
Be Clear about who is the Client
Ancillary to setting an appropriate scope for a pro bono representation is being very clear in the engagement letter and initial meetings exactly who is the client. Pro bono matters often involve family members acting as witnesses or support, and it is important to be clear that only the client is, in fact, entering into an attorney-client relationship. Doing so sets boundaries on the representation and also who may be privy to privileged discussions and information.
For example, CAIR Coalition often represents teenage asylum seekers who are living with family members. The family members will accompany the client to meetings and hearings and will sometimes see themselves as part of, and able to direct, the representation. To avoid this, we are clear from the start of representation that only the child is the client and that the family is not.
Of course, if you do intend to represent more than one client in the same representation, be sure to use advance waivers of conflicts language in your engagement letter.
Remember your Mentor
In the first post in our Pro Bono Practice Series (available here), we spoke about working with a mentoring attorney from a legal services provider. If your pro bono client was referred by a provider that will continue mentoring you throughout the case, you should include language in the retainer by which the client consents to your sharing information with your mentor.
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Remember, the hallmark standard for ethical attorney-client interactions is informed consent. A client who does not understand an engagement letter may not be adequately giving informed consent to what the letter states. Avoid headaches and make sure the client can read and understand the engagement letter. CAIR Coalition is always happy to help our pro bono teams work through drafting engagement letters.
