CHAPTER 1 - 1-1 CREATING AN ATTORNEY-CLIENT RELATIONSHIP

• Jurisdiction: United States

1-1 Creating an Attorney-Client Relationship

There is probably no more constant area of problem, both in the field of lawyers' ethics and in malpractice, than determining if and when an attorney-client relationship has been formed. Absent an attorney-client relationship, an attorney owes no duty to a nonclient.¹ An attorney-client relationship is formed when a client asks a lawyer for legal services and the lawyer either agrees or does not disagree that services will be performed.² No formal writing is needed nor is the payment of consideration a requisite to the formation of such a relationship.³ The existence of the relationship is judged by the client's reasonable expectations and understandings.⁴ The client's understandings and beliefs must be based upon objective facts. "[A] plaintiff's subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship or a duty of care owed by the attorney to the plaintiff."⁵

Traditionally, lawyers and their potential clients met in an office environment where all of the indicia of a professional relationship attached from the outset. Prior to even meeting with the client, the lawyer would have asked for enough information to be able to do a conflicts check and to determine whether the problem was one within the scope of the lawyer's competence or interest. With the advent of the Internet and social media, lawyers now meet many of their clients on-line. Sometimes this is the result of the lawyer's website or other advertising. Sometimes it happens due to an unsolicited text or e-mail received by the lawyer. Twitter, FaceBook, Instagram, LinkedIn, JD Supra and other forms of social and legal media have created a situation where lawyers can multiply their presence in the marketplace well beyond the limits of the world of clients who might be willing or able to drive to their office for a consult. There are many legal "matching" sites which put prospective clients together with lawyers who may be willing to do their work.

The shift of both lead-generation and legal service delivery to electronic platforms (in some practice areas, most of lawyer-client interaction is conducted this way) has rewritten much of the playbook for how lawyers do their work.⁶

1-1:1 Inadvertent Client Relationships

One problem in the creation of lawyer-client relationships using social media and other on-line tools has been a problem known in legal risk management as "inadvertent relationships."⁷ In an inadvertent relationship, a lawyer may engage in a discussion or communication with a potential or existing client about a legal problem. She may offer a casual answer to one or more fact-specific questions or offer some off-the-cuff advice on a hypothetical problem. He may not have obtained all of the relevant facts from the client or understand what venue's laws are going to be applicable to a successful representation.

She may not realize that the person she is speaking with is adverse to a present or former client. He may not appreciate that the potential client is unschooled in the law and naively believes that she has been given accurate and complete information and will rely on it, perhaps to her detriment.

The potential client may feel that, to the extent necessary, he has been warned about other things such as a statute of limitations, a time bar, a jurisdictional notice requirement or any other time-sensitive issue. Only later will the lawyer fully understand the degree of miscommunication, when the marshal serves the malpractice case or her opponent files a motion to disqualify.⁸

1-1:2 Prospective Clients

Concerns and problems arising out of the ease with which inadvertent relationships could be created led to the creation of Rule 1.18. It defines rights and duties related to "prospective clients." The protections and responsibilities recognized by the rule are triggered when the client "consults" with a lawyer about the possibility of creating an attorney-client relationship.

This choice of the word...