Clear Expectations: Engagement Letters for Ethical Practice

By Thomas B. Mason and Hilary P. Gerzhoy

As lawyers who represent lawyers, we know that an easy way to mitigate risk — of a fee dispute, a bar complaint, or a malpractice action — is to set clear expectations with the client at the beginning of every case and to exercise caution in withdrawing at the end of a representation.

The client needs to understand the lawyer’s responsibilities, their own responsibilities, the scope of the engagement, and how they will be charged. A well-written engagement letter can provide a smooth off ramp if the lawyer wishes to terminate the relationship. Here we set forth best practices to avoid missteps at the commencement and conclusion of a representation.

Engagement Letter Guidelines

D.C. Rule of Professional Conduct 1.5(b) requires that, at the outset of every representation, the lawyer put two things in black and white: the “basis or rate of the fee [and] the scope of the lawyer’s representation.” The writing must also spell out what expenses the client will be responsible for. 

On paper, this sounds straightforward. In practice, it is anything but. Too often, lawyers treat engagement letters as a formality — a boilerplate template pulled from the firm’s files. But done well, an engagement letter is not just about compliance. It is a lawyer’s best insurance policy — a tool to prevent disputes, enforce terms, and demonstrate adherence to the ethics rules if questions later arise.

Although Rule 1.5(b) does not require the client’s signature, obtaining it is wise practice. A signed letter provides clear evidence of the contract between lawyer and client and avoids the “he said, she said” risk of oral agreements. Without a signature, disputes can quickly devolve into credibility contests. Worse still, fee disagreements often spark disciplinary complaints, exposing lawyers to scrutiny that has little to do with the underlying representation.

The written requirement technically applies only when the lawyer has not “regularly represented” the client, according to Rule 1.5(b). But even with long-standing clients, lawyers would be prudent to confirm terms in writing. Exchanging email communications can suffice, but the key is clarity. Both sides should be on the same page about scope, fees, and responsibilities.

An engagement letter is not a “set it and forget it” document. If the scope of work changes, or if additional clients are added, the writing should be updated. Alterations to an existing engagement letter that benefit the lawyer, such as raising fees midstream for the same scope of work, are presumptively disfavored. D.C. Bar Legal Ethics Opinion 310 states that “change in a fee arrangement in an ongoing representation is subject to strict scrutiny for overreaching by the lawyer.” 

Contingent fee cases demand particular care. Rule 1.5(c) requires specificity as to the particulars of calculating the fee and how expenses are to be treated. The overarching standard is reasonableness, which is assessed by the list of factors set forth in Rule 1.5(a). According to Legal Ethics Opinion 347, reasonableness is based on the facts and circumstances of the representation “as they exist both at the beginning and the end of the representation.” 

Engagement letters also provide a natural place to address other obligations under the D.C. Rules. For example:   

• Multiple clients. When representing more than one client in the same matter, the Rules require certain disclosures and consents. Rule 1.7, Comments [14]–[20]; Rule 1.8(f).
   
• Third-party payment. If an employer, insurer, or family member pays the fee, the client’s informed consent is required. Rule 1.8(e).
   
• Limited scope. If representation is restricted (for example — pre-indictment only or serving solely as local counsel), the limitations must be clearly explained and consented to. Rule 1.2, Comments [4]–[6]; D.C. Bar Ethics Opinion 387.
   
• Entity representation. When representing an organization, the lawyer should make clear that the client is the entity, not individual officers or employees. Rule 1.13. It is often best practice for the lawyer to inform senior management that the lawyer does not represent them individually. 
   
• Outside lawyers. If other lawyers will work on the matter, disclosures and consent may be required. Rule 1.1, Comment [6]; Rule 1.5(e).
   
• Advance waivers. Many firms seek them, but they must be explained in plain language and tailored to the representation. Rule 1.7, Comment [32].
   
• Flat fees. These are regulated directly by the D.C. Court of Appeals. In re Mance, 980 A.2d 1196 (D.C. 2009); In re Alexei, 319 A.3d 404 (D.C. 2024). These two cases promulgate rules for flat fee engagements that are not yet contained in the D.C. Rules themselves.
   
• Arbitration of disputes. Any agreement to arbitrate malpractice or fee disputes should be set forth in the engagement letter. D.C. Bar Ethics Opinion 376.
   
• File retention. Lawyers may want to establish terms to avoid uncertainty about when files can be destroyed. D.C. Bar Ethics Opinion 283.
   
• Communication practices. Stating expectations at the outset — for example, how responsive a client needs to be to information requests from the lawyer — prevents confusion later.

Lawyers are often tempted to keep expanding engagement letters until they become dense, 10-page contracts with appendices and “general terms” attached. The longer the letter, the less likely the client is to understand it. For sophisticated institutional clients, this may not be a problem. But for individuals and small businesses, the opposite is true: shorter is better. A concise, clearly written letter enhances trust and minimizes disputes.

Rule 1.5, Comment [2], suggests that a lawyer may use “a standardized letter, memorandum, or pamphlet” and indicate “those practices applicable to the specific representation.” Although producing a set of forms adaptable to the circumstances of a particular case is good practice, the lawyer should not regard the engagement letter as essentially immutable except for the identity of the client, the scope of the representation, and the applicable rate structure. The goal is not to bury clients in boilerplate, but to foster genuine understanding.

Withdrawal From a Representation by the Lawyer

Rule 1.16, Comment [4], states that a client has the right to terminate a representation at any time for any reason or for no reason at all. An attorney’s right to terminate a representation, by contrast, is limited. Rule 1.16(a) explains instances where the lawyer must withdraw, while Rule 1.16(b) sets forth the circumstances under which a lawyer may withdraw. 

There are three situations in which withdrawal is not optional: (1) the client fires the lawyer, (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to continue, and (3) continuing the representation would violate the D.C. Rules.

That third category covers a wide range of scenarios: conflicts of interest, client fraud, disqualification by a tribunal. If continued representation would itself be unethical, withdrawal is mandatory.

Meanwhile, the more common question is when a lawyer may withdraw. These situations are more nuanced, and the lawyer can elect not to do so. Permissive withdrawal is allowed when: 

1. “[W]ithdrawal can be accomplished without material adverse effect on the interests of the client.” A rule of reason is applied to this basis. There will be no material adverse effect if the client has ample time to find a new lawyer and there are no other sources of material prejudice against the client. 
    
2. The client insists on using the lawyer’s services for a course of action that the lawyer “reasonably believes” is criminal or fraudulent. Note that this phrasing allows for greater flexibility than “knows.” 
    
3. The client has already used the lawyer’s services to commit a crime or fraud. Again, if the lawyer knows that the client is maliciously using the lawyer’s services, withdrawal is mandatory. 
    
4. The client fails to pay fees after reasonable warning.
    
5. The representation will impose an unreasonable financial burden on the lawyer. Imagine, for example, a flat fee engagement that the lawyer reasonably assessed might result in a week-long trial being consolidated with related cases; now, the lawyer faces a 10-week trial. A solo practitioner could seek to withdraw on this basis. 
    
6. The client engages in conduct that makes representation unreasonably difficult.
    
7. The lawyer believes the tribunal will permit withdrawal for other reasons. 

A lawyer before a tribunal must seek permission to withdraw when so required by the rules of the tribunal. Absent such permission, the lawyer may not withdraw and must continue to represent the client.

Protecting Confidentiality & Client Interests 

Even when withdrawal is justified, lawyers must tread carefully. Motions to withdraw cannot reveal client confidences. Disciplinary authorities have sanctioned lawyers who disclosed damaging client information in publicly filed motions. See In re Ponds, 876 A.2d 636 (D.C. 2005) (lawyer disciplined for disclosing client’s whereabouts and knowledge of outstanding arrest warrant in publicly filed motion to withdraw); In re Gonzalez, 773 A.2d 1026 (D.C. 2001) (lawyer disciplined for alleging in publicly filed motion to withdraw that client lied to lawyer, missed appointments, and failed to provide requested information).

If asked by a tribunal to explain, the safest course is often the simplest: State that “irreconcilable differences” require withdrawal. Comment [3] to Rule 1.16 notes that such a statement ordinarily should be accepted as sufficient.

The lawyer must act to protect the client’s interests upon withdrawal. Rule 1.16(d) requires the lawyer to “take timely steps to the extent reasonably practicable to protect a client’s interests.” These steps include (1) providing reasonable notice, (2) seeking extensions of time when necessary to protect client interests, (3) cooperating with successor counsel, and (4) providing the client with the lawyer’s file. 

The obligation to return the file is taken seriously in the District of Columbia. The lawyer cannot charge the client for the file, except for delivery charges when the client is not indigent. See D.C. Bar Ethics Opinion 283. Delay can itself be grounds for discipline. See In re Thai, 987 A.2d 428 (D.C. 2009) (lawyer disciplined for waiting five days after client request to provide the file). 

Importantly, unlike some jurisdictions, the District of Columbia does not recognize a broad “retaining lien” on client files for unpaid fees, according to Rule 1.8(i). Withholding the file as leverage is essentially prohibited.

Conclusion

Engagement letters and withdrawals may seem like the administrative bookends of representation — clerical matters to be handled at the margins of real lawyering. But in practice, they are front and center in disciplinary cases. In almost every investigation, disciplinary counsel will ask to see an engagement letter. A poorly drafted one can create problems wholly unrelated to the client’s complaint. Similarly, missteps in withdrawal, particularly breaches of confidentiality or failures to protect the client, invite scrutiny and may also be the subject of disciplinary investigations. 

Thomas B. Mason is founding partner of the legal ethics and malpractice group at HWG LLP. He has served as chair of the D.C. Bar Rules of Professional Conduct Review Committee and Legal Ethics Committee. He is currently chair of the D.C. Bar Innovations in Legal Practice Committee. Hilary Gerzhoy is vice chair of HWG LLP’s legal ethics and malpractice group and chair of the D.C. Bar Rules of Professional Conduct Review Committee.