I continue to find that the use of a letter of closure varies greatly firm to firm as well as between attorneys within the same firm. The excuses that I often hear include “we do a lot of flat fee in and out kinds of things here and the effort simply isn’t worth it,” “I’m not about to say good-bye get out of here, particularly to my repeat clients,” or “these matters never really close.” Honestly, I don’t buy into any of this.
Let’s start with the basics. The purpose of a closure letter is to confirm that your representation has ended, right? From this perspective, I can understand why some might view these letters as more of a good-bye, get out of here statement and thus don’t wish to use them. I see it differently. Closure letters can be a powerful marketing tool when placed in a different light. Regardless of whether the client is an in and out client or a long-term repeat client, the client has honored you by entrusting their current legal matter with you. Why not acknowledge that and say thanks? A simple thank you note along the lines of the following can do wonders in terms of repeat work and referrals.
This concludes our representation of you in this matter. We hope that you found the quality of our work to be exemplary and we look forward to working with you in the future if and when the need ever arises. Thank you for allowing us to be of service. It has been our pleasure.
If other matters remain open for the client, the letter can be modified accordingly. Instead of saying “we look forward to working with you in the future,” you might say “we’ll be in touch next week in regard to the Hightower matter.” Write to your audience, and yes it’s fine to have a few standard letters developed for various practice areas, but these things can and should be personalized which often takes just a minute or two.
Beyond the value of saying thanks, there are a number of other significant benefits that come with using these letters. The most common call that I take are questions about file retention. It’s the “How long do we need to keep these files?” call. While the answer to that question changes depending upon practice areas among other issues, many of the more senior of us have experienced the headache that comes from failing to notify clients about the firm’s file retention/destruction policy, whatever it happened to be. Remember in most jurisdictions you’re not supposed to just get rid of old files whenever you want. Your client paid for the creation of the file and to varying degrees in just about every jurisdiction, the client has some ownership interests in that file. Trying to inform clients that their file will be destroyed years later can be an exercise in futility, so why not inform clients of your file retention policy for their type of matter with a thank you letter when you know where they are? Seems like a no brainier to me.
Why not also use this letter to cut off unintended reliances? As attorneys, we often view flat fee in and out work as just that. Clients, however, may see it differently. They may feel that they have finally found their family attorney or their business lawyer. If you don’t wish to have these types of clients mistakenly believe that you will look out for their interests on a going forward basis, send a thank you letter. Consider the simple will. If you don’t wish to take on the responsibility of informing everyone you’ve done a will for that the law has changed, cut off the possibility of that kind of unintended reliance. A statement inserted into your thank you letter along the lines of “Here are your wills, they should be reviewed every 3 to 5 years because laws do change” can help solve that problem in a non-dismissive way. The same would hold true for small business formations, particularly when you make the decision to hold the corporate books for these clients in the hopes that this will bring about additional work in the future. You don’t get something for nothing when it comes to holding on to the corporate books of your clients because some will interpret your doing so as meaning they can rely on you to continue to look out for their interests when that’s not the case.
A thank you letter is also the perfect place to document final instructions to the client. Even after you’ve completed your work, there may be times where a task or two remains for the client to complete. What might happen if a client fails to do that task or does it incorrectly? I believe attorneys do a pretty decent job of informing their clients about any remaining tasks that a client must take care of. Unfortunately, attorneys don’t always document those instructions. Should the worst ever happen and your client’s memory of what was said differs substantially from yours, you’ve got a problem. In the malpractice arena, attorneys often don’t fare well in these word against word disputes. This is why tax attorneys regularly write final instructions as to where to sign, where to send, what amount to pay, and by what date these steps must be taken in some type of closure letter. After all, they don’t want to pay the interest and penalties after a client has missed a tax deadline and then says “Why didn’t you tell me there’d be consequences if I missed that deadline?”
Two of the more significant benefits of a letter of closure concern conflicts of interest and the doctrine of continuous representation. In terms of conflicts, an interesting question that arises from time to time is when does a current client become a past client for conflict resolution purposes? The temptation is to rationalize that the passage of time coupled with a bright line gets you there. After all, doesn’t the fact that the deed was delivered four months ago, the settlement proceeds were disbursed last year, the judge signed the final order three years ago, or the contract was signed over five years ago mean that these various matters were concluded and all of these clients are now past clients? Our conflict rules don’t speak of bright lines or the passage of time as being determinative. Keep it simple. For conflict resolution purposes, once someone becomes a current client, they are always a current client unless and until you clearly document otherwise. This is typically done in a closure letter that clearly states something along the lines of “this concludes our representation of you in this matter.” In fact, this is the reason why conflict savvy firms keep all letters of closure even after destroying the related file years after closing it. The closure letter is part of the conflict database because it documents who is a current client and who is a past client.
The doctrine of continuous representation and its tolling of the statute of limitations in malpractice cases can also be a problem. Losses have been paid on claims where the work was done 20, 30, and even 40 years ago. Here is an example of how this can happen. A firm has represented a long-term client for years. The work has always focused on oil and gas leases and at this point the number of leases the firm has been involved with numbers well over 40. Unfortunately, closure letters were never sent because they were viewed as offensive. The lawyers feared that they would be received as good-bye, get out of here letters. But what happens if a serious problem on one of the older matters comes to light and the client eventually sues? The lawyers want to argue that the subject file was closed years ago; but of course, there is no documentation of that. Due to the continuous representation coupled with the failure to formally close any of the long-term client’s past files, an argument can be made that the running of the statute of limitations date has been tolled. If the firm had simply taken the time to send a thank you letter documenting that the work on each specific lease had been completed and the file was being closed, the outcome could be very different. Now an argument can be made that the closure letter started the SOL clock running and the window of opportunity to file suit has long since passed. That, my friend, is powerful stuff.
Finally, sometimes I’ll hear that the time is takes to write closure letters simply isn’t justified from a business perspective. Yes, there may be times were a more formal letter is called for but, again, remember to write to your audience. For some clients a simple “thanks for stopping by” email may suffice. The task can also be made much more efficient by developing a few templates for various practice areas. It’s going to be much easier to customize a basic standard letter than create something new each and every time.
With the above said, I will now conclude my discussion of closure letters. I do hope you found this to be of value and thank you for allowing me to be of service. It has been my pleasure.
Sample Letters of Closure (PDF document)
As a Risk Manager for ALPS, Mark Bassingthwaighte. Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog at www.alps411.com. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be contacted at: email@example.com