Advising Students or Practicing Law: The Formation of Implied Attorney‐Client Relationships with Students

• Date: 01 June 2014
• DOI: http://doi.org/10.1111/jlse.12014
• Published date: 01 June 2014
• Author: Patricia M. Sheridan

Journal of Legal Studies Education

Volume 31, Issue 2, 207–232, Summer 2014

Advising Students or Practicing Law:

The Formation of Implied

Attorney-Client Relationships with

Students

Patricia M. Sheridan∗

I. Introduction

An attorney-client relationship is traditionally created when both parties for-

mally enter into an express agreement regarding the terms of representation

and the payment of fees. There are certain circumstances, however, where the

attorney-client relationship can be implied from the parties’ conduct. An im-

plied attorney-client relationship may arise even though the attorney did not

intend to create the relationship, if the client reasonably believes the lawyer

has become the client’s attorney. Whether the attorney-client relationship is

created formally or informally, the attorney is subject to certain professional

obligations and may be exposed to potential claims of legal malpractice or

ethical misconduct.

Many undergraduate law professors routinely receive requests for le-

gal advice from their students. This situation is fairly common due to the

extensive personal interaction among faculty and students within most un-

dergraduate programs, which provides ample opportunity for students to

ask questions. In addition, the undergraduate student population is largely

unfamiliar with the law and the legal system, so it is natural for students

to casually seek guidance from their professor. When responding to a re-

quest for assistance, however, a law professor should bear in mind that an

attorney-client relationship may be created by providing legal advice to a

student.

∗Assistant Professor of Business Law, Manhattan College, Riverdale, New York.

C2014 The Author

Journal of Legal Studies Education C2014 Academy of Legal Studies in Business

207

208 Vol. 31 / The Journal of Legal Studies Education

The informal creation of an attorney-client relationship between a law

professor and student within the academic setting poses unique problems

of professional responsibility for which there is little guidance. While several

published works have described the general ethical standards for law profes-

sors, the advice is geared toward law professors who teach in American law

schools and perform legal work outside the academic environment.1The spe-

cific topic of forming attorney-client relationships with students has received

limited attention, and the exact nature of the potential conflicts for the law

professor has not been fully explored.2This article is intended to address the

typical experience of an undergraduate business law or legal studies professor

who regularly engages in activities, such as student advising, which involve

informal, personal contact with students outside the classroom. These casual

interactions with students provide ample opportunity for the inadvertent for-

mation of an attorney-client relationship, and the article attempts to offer

guidance on the effective avoidance of such a relationship with a student.

The article also examines the potential conflicts stemming from the dual

roles of the law professor as both an attorney and faculty member. Part II of

this article reviews the express and implied formation of an attorney-client

relationship. Part III examines how the attorney-client relationship is likely

to arise between the undergraduate law professor and a student, and suggests

practical ways to avoid the inadvertent formation of an implied attorney-client

relationship. Part IV analyzes the unique ethical and professional issues pre-

sented when a law professor provides legal advice to students.

II. Formation of the Attorney-Client

Relationship

It is important to understand how the attorney-client relationship is created

because, once a relationship is established, an attorney owes certain duties

1For a general statement of the ethical standards governing law professors teaching in American

law schools, see Ass’n of Am. Law Sch., AALS Handbook, Statement of Good Practices by Law

Professors in the Discharge of Their Ethical and Professional Responsibilities, http://www.aals.

org/about_handbook_sgp_eth.php (last visited Oct. 1, 2013) [hereinafter AALS Statement of

Good Practices]; see also Robert B. McKay, Ethical Standards for Law Teachers,25Ark. L. Rev.

44 (1971); Norman Redlich, Professional Responsibility of Law Teachers,29Clev. St. L. Rev. 623

(1980).

2See, e.g., Frederick C. Moss, Is YouIs, or Is You Ain’t My Client?: A Law Professor’s Cautionary Thoughts

on Advising Students,42 S.Tex. L. Rev. 519 (2001).