§4.2 Forming the Attorney-Client Relationship

• Jurisdiction: Washington

II. FORMING THE ATTORNEY-CLIENT RELATIONSHIP

The "principles of substantive law" to which the scope section of the RPC alludes are generally found in the common law of agency, because the attorney-client relationship is basically an agency relationship between the client as principal and the attorney as agent.¹⁸ Under the law of agency, an agency relation is created "by a principal's manifestation to an agent that, as reasonably understood by the agent, expresses the principal's assent that the agent take action on the principal's behalf."¹⁹

But "authority may exist although there is no contract between a principal and agent; a relationship of agency does not require that the principal or the agent receive consideration from the other. [And i]t is not necessary to the existence of actual authority that an actor promise or otherwise undertake to act as agent."²⁰ Rather, "[t]he relationship of attorney and client can be express or implied from circumstances constituting a request for and agreement to render legal assistance or advice by the attorney."²¹ In determining whether such a relationship has been formed, the would-be client's subjective state of mind is relevant, but only if it is reasonably induced.²² Conversely, "[i]f a principal voluntarily manifests assent or intention, the manifestation is effective although it is made negligently or is otherwise in error. The principal's manifestation of assent determines whether a relationship of agency arises, not the principal's unexpressed intention if otherwise unknown to the agent. An agent's reasonable understanding of the principal's intention determines whether the agent has acted with actual authority...."²³

Once an attorney undertakes to represent a client,

the fiduciary obligations and duty of competence continue until the task is completed, or until relieved either by the client or by a court. ... The termination of the relationship may be implied from the parties' conduct. The relationship and correlative duties end when the attorney completes the representation. ... The relationship may be ended unilaterally if the lawyer's communication is such that the client understood or reasonably should have understood that no further services would be rendered.²⁴

These principles of substantive law have been further clarified in the Restatement of the Law Governing Lawyers. According to the Restatement,

A relationship of client and lawyer arises when:

(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for that person; and either (a) the lawyer manifests to the person consent to do so or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or

(2) a tribunal with power to do so appoints the lawyer to provide the services.25

The principal case law in Washington on when and whether an attorney-client relationship has been formed is found in the legal malpractice cases. This is because it is usually necessary to prove the existence of an attorney-client relationship in order to prove legal malpractice.²⁶ But the rules relating to the formation of the attorney-client relationship apply in both the malpractice and the disciplinary contexts.²⁷ Examination of the cases shows that Washington follows the principles summarized in the prior paragraphs. Thus, the state Supreme Court has summarized the law on the relationship as follows:

[T]he essence of the attorney-client relationship is whether the attorney's assistance or advice is sought and received on legal matters. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 306, 45 P.3d 1068 (2002); Bohn [v. Cody], 119 Wash.2d [357, 363 (1992)]. An attorney-client relationship may be implied from the parties' conduct; it need not be memorialized in writing. Bohn, 119 Wash.2d at 363. Whether or not a fee is paid is not dispositive, for "[t]he existence of the [attorney-client] relationship ‘turns largely on the client's subjective belief that it exists.'" Id. (quoting In re Disciplinary Proceeding Against McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330 (1983)). However, the subjective belief must be "reasonably formed based on the attending circumstances, including the attorney's words or actions." Id. n.8.²⁸

Termination of the relationship may depend on the circumstances. But even when the relationship has technically ended, ethical obligations may not be over:

Where a relation of confidence is once established, either some positive act or some complete case of abandonment must be shown in order to determine it. The rule must be applied as long as the influence arising from...