Phantom clients, those who believe they are represented by you, though the individual has not formally hired or retained you, can lead to a potential claim down the road. If you decline an engagement for legal services or the client chooses not to retain you, the non-engagement should immediately be confirmed in writing by way of a non-engagement letter.

You can use this checklist when drafting your non-engagement letter:

  • Clearly confirm that the representation is declined and that there is no lawyer/client relationship. You need not set out your reasons for your decision.
  • Return any documentation or other property obtained during the consultation.
  • Refer to the fact that statutes of limitations may apply to bar recovery if steps are not taken promptly to pursue rights or remedies. If a specific statute of limitations poses an immediate problem, specific reference should be made to a need for urgent action on the part of the client.
  • Advise the client to seek other legal counsel as soon as possible to pursue his/her rights.
  • Take care not to express an opinion on the merits of the claim unless careful research has been conducted to support the position.
  • Confirm acknowledgement of receipt of the non-engagement letter by the client and document his/her receipt.

The Law Society of Ontario has also developed a sample non-engagement letter that you can adapt for your own use.