Editorial: the engagement letter should be the rule, not a preference

This is an editorial by the AGENTE LEX newsroom. It expresses the portal's opinion.

Few things prevent as many problems between a lawyer and their client as a signed paper at the start. What will be done, what will not, how much it may cost and what happens if things get complicated. It is called an engagement letter, and the rules already provide for it. What is missing is for its use to be universal.

What the rules say

The General Statute of the Spanish Legal Profession, approved by Royal Decree 135/2021, establishes in its Article 27.1 that the engagement is formalised "preferably" by engagement letters. Article 27.2 instructs bar associations to draw up templates to make their use easier. And Article 48 obliges the lawyer to inform the client of the fees and costs of the work through the engagement letter or an equivalent means, in addition to the viability of the matter and the consequences of a possible order to pay costs.

Organic Law 5/2024, on the Right of Defence, went a step further: its Article 15 allows the client to demand a written engagement letter, with their rights, the foreseeable steps, the possible consequences, the budget and the handling of their data. We explain it in the summary of the Organic Law on the Right of Defence.

That is: the Statute recommends it and the law makes it a client's right. But if the client does not ask for it, the lawyer can still work without it.

Why it should always be used

It protects the client. Those who hire a lawyer usually do so at a worrying moment. Having in writing what will be done and how much it may cost lets them decide with information and spares them surprises.

It protects the lawyer. If a disagreement over fees arises, the discussion turns on what was commissioned and what was said at the start. The engagement letter sets out the scope of the work in writing and keeps everything from depending on each party's memory.

It organises the firm. A well-made engagement letter is the basis of orderly invoicing. With the arrival of mandatory e-invoicing, which will require corporate clients to accept or reject each invoice, starting with a clear engagement will be even more useful, as we explain in the editorial on e-invoicing and fee collection.

It improves the profession's image. A client who signs an engagement letter understands they are hiring a professional service with rules. That strengthens trust in the whole legal profession.

The usual objections

"It is not worth it for small matters." It is precisely there that the room to argue over fees is smaller and a disagreement weighs more. A simple template is filled in within minutes.

"The client is put off by paperwork." A clear engagement letter, in understandable language, conveys the opposite: transparency.

"I don't know how much it will cost." Neither the Statute nor the law requires predicting the future. It is enough to explain the criteria, the foreseeable scenarios and what would change the budget.

What we propose

1. That every lawyer adopt the engagement letter as practice in all matters, without waiting for the client to ask.
2. That bar associations update their templates with the contents of Article 15 of Organic Law 5/2024, as Article 27.2 of the Statute already asks of them.
3. That templates be written in plain language, because an engagement letter the client does not understand does not do its job.

For those who practise on their own, we review the rest of the Statute's rules in the guide on individual legal practice. More editorials in Opinion.