Avoiding unintended attorney-client relationships

Not every attorney-client relationship begins in the traditional way, with an engagement letter or even an explicit agreement with the client to provide legal advice. There are many seemingly innocuous situations where -- if an attorney is not careful -- a party could believe or a court could find that an attorney-client relationship exists, even where the attorney has no such intent. There is also a risk that attorneys who provide offhand legal advice to people, without a formal conflicts check or new matter screening, could create a problem for themselves.

Two examples illustrate this risk. First, consider an associate at a law firm who receives an email from an old friend complaining that his landlord is refusing to return his security deposit and asking what he can possibly do to get his money back. Trying to be helpful, the associate does some quick internet research and responds by sending his friend a summary of the law relating to security deposits. Convinced that he is entitled to the return of his security deposit, the friend forwards the associate's email to the landlord. As it happens, the landlord is one of the law firm's largest clients and now sees its law firm giving advice adverse to the landlord's interests. An innocent attempt to help a friend has thus created a potential conflict of interest, in addition to a serious client relations problem.

Second, an attorney is chatting with a neighbor who mentions that his daughter just received a traffic citation in connection with a car accident. The neighbor is unsure whether the daughter should contest the citation and asks for the attorney's two cents. Although the attorney has little experience with such matters, she suggests that it would likely be easier for the daughter to just pay the fine and put the situation behind her. Later, the neighbor is angry because his daughter has now been sued by another driver involved in the accident and, worse yet, his insurance company has refused to defend the lawsuit because it was not reported immediately. Indeed, when the neighbor's new attorney asks why the accident was not reported to the insurance company, the neighbor explains that his attorney neighbor told him to just pay the fine.

These are the hidden risks for attorneys that arise from everyday communications with friends and acquaintances. Even worse, given the widespread use of emails and text messages, offhand and informal communications are preserved for posterity and can look much worse when presented at a trial. Below are some tips for spotting potential issues and for limiting the risks of unintended attorney-client relationships.

The Creation of Attorney-Client Relationships

The line at which casual communications cross into the creation of an attorney-client relationship can be blurry depending on the circumstances. As illustrated by these examples, sometimes the communications involve topics that seem routine, until the attorney is asked: "What do you think I should do?"

In response, attorneys typically do not tell their friends to wait until they can run a conflict check or get an engagement letter drafted. Others still feel uncomfortable telling an acquaintance that they are not experienced enough in that area of the law to provide advice. Yet, even when a friend informally asks for legal advice, there could be a presumption that the attorney now owes that person certain duties.

A relationship sufficient to sustain a legal malpractice claim can typically be formed in two ways: expressly or impliedly. Some attorneys mistakenly assume that they can only be sued by fee-paying clients or people that the attorney expressly agreed to represent. However, if the circumstances support a finding that there was an implied agreement for the attorney to provide legal services, then the attorney could face malpractice liability even without expressly agreeing to the representation or receiving any fee.

There are also a number of other considerations that can add to the complexity, such as the application of the attorney-client privilege. If an opposing counsel seeks production of the email string containing the attorney's informal responses to questions from a friend, then the attorney may well argue that the emails are protected by the attorney-client privilege. If the attorney-client privilege applies, then it would seemingly follow that there was an attorney-client relationship sufficient to support a legal malpractice claim. But in a subsequent legal malpractice claim, the same attorney who claimed privilege might also argue that the communications were not made in the context of an attorney-client relationship.

Even if there was clearly no attorney-client relationship and the legal malpractice claim is without merit, defending the claim can still cause headaches, in addition to client relations issues.

Limiting the Risk

One potential solution for mitigating the risk of unintended attorney-client relationships is to use a disclaimer on emails. Many attorneys use email footers to include biographical information or a signature, while others include a notice regarding the potential application of the attorney-client privilege. The footer can also be used to clarify that no duties are assumed, intended, or created by any communication so that the recipient does not mistakenly believe that an attorney-client relationship was created.

In addition to using a disclaimer, attorneys can choose to use engagement letters and fee contracts to signal the creation of an attorney-client relationship and to carefully define the scope of the relationship. In California, the use of an engagement letter is in fact mandatory under certain circumstances. Business and Professions Code Sections 6147, 6148.

Although these steps may not be foolproof, they can help attorneys rebut any contention that an attorney-client relationship was created without the attorney's express agreement. In any event, emphasizing the potential risks associated with casual legal advice can help attorneys think twice before trying to help out a neighbor in a legal bind.