Letters of engagement: a cautionary tale

Rule of Professional Conduct 1.5(b) requires that letters of engagement set forth the scope of engagement. As routine as describing the scope of engagement may be, there is good reason to be thoughtful about it because it can be an early step down the road to a malpractice claim, which is what happened in Baruno v. Slane, 2013 Conn. Super. LEXIS 1300, 2013 WL 3315418 (Conn. Super. Ct. June 6, 2013)

In Baruno clients retained a lawyer to institute legal proceedings “concerning the adverse possession claim which my neighbors have made against me.” (Quoted language taken from letter of engagement).  After determining that there was a good faith basis for bringing the lawsuit, the lawyer did what the client had asked him to do. The goal was to stop neighbors from making improvements to a parcel of land. The problem turned out to be that adverse possession was the wrong theory of the case; the land in question was subject to a restrictive covenant that prohibited the making of any improvements on the land, a fact unknown to the lawyer at the time he wrote the letter of engagement.  From the start the lawyer’s focus was on adverse possession, which fit the facts of the case as described by the client. The property being in Greenwich the rest of the case is a sad, expensive story. After listening to expert testimony, the court found that the lawyer had a duty to examine the land records, including the deed to the neighbors’ property where he would have found the restrictive covenant. The court awarded damages of $620,000, including a fee forfeiture in the amount of $10,386.

Moral of the story:  be thoughtful about scope of engagement and think twice before basing your approach to solving the client’s problem solely on the client’s description and assessment of the facts.