Ain’t It Over?

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As we celebrate the life and mourn the loss of Yogi Berra, there probably isn’t a newspaper the country that hasn’t quoted (if not headlined) that most famous of Yogi-isms: “It Ain’t Over ‘Til It’s Over.”   For me, the quote evokes memories of 1981, when I painted it on a bedsheet and went with a friend to Banner Day at the old Shea Stadium to watch the then hapless Mets (that was then, this is now).  Ok, we weren’t particularly original; but it got us onto the field of a major league ballpark, where we proudly marched our banner between games of a double-header.

As I reflect on Yogi’s words today, I find them particularly thought provoking from a risk management perspective.  For when is an attorney-client relationship truly over?  Yogi’s wisdom underscores the benefits to clearly documenting that the representation of a client — even on just a specific matter — is in fact “over”:

*Defining expectations.  It may not always be obvious when a particular matter has concluded.  A disengagement letter prevents a client from claiming they believed that you continued to represent them and thus relied on you to advise them on a matter.

*Avoiding misunderstandings.  Even after a deal closes, there may be follow-up business tasks that the client needs to do.  If you are undertaking to advise the client on those, great.  If not, a disengagement letter makes clear that your role in the deal has concluded.

*Preventing conflicts.  Under the conflict rules, lawyers are usually precluded (absent consent) from acting adversely to a current client, even if the matter is unrelated to your representation.  In contrast, you generally can act adversely to a former client, unless the matter is substantially related to your prior work.

As always, Yogi spoke the truth.  If he didn’t, he wouldn’t say that he did.

Coming up next week:  We’ll study the ways in which another Yogi-ism — “If you come to a fork in the road, take it” — can be utilized to resolve conflicts of interests under Model Rule 1.7.  For now, enjoy the attached musical tribute.