§1.2 - Creation of Attorney-Client Relationship

• Jurisdiction: Washington

§1.2 CREATION OF ATTORNEY-CLIENT RELATIONSHIP

(1) General rule

The general rule regarding formation of an attorney-client relationship was enunciated by the Washington Supreme Court in Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992). Determining whether an attorney-client relationship exists is a fact-based inquiry. The essence of an attorney-client relationship is whether the attorney's advice or assistance is sought and received on legal matters. Bohn, 119 Wn.2d at 363; In re Disciplinary Proceeding Against Egger, 152 Wn.2d 393, 410, 98 P.3d 477 (2004). The existence of the relationship turns largely on the client's subjective belief that it exists. Bohn, 119 Wn.2d at 363; Jones v. Allstate Ins. Co., 146 Wn.2d 291, 306, 45 P.3d 1068 (2002). "The client's subjective belief, however, does not control the issue unless it is reasonably formed based on the attending circumstances, including the attorney's words or actions." Bohn, 119 Wn.2d at 363.

The attorney-client relationship need not be formalized in a written contract, and it may be implied from the parties' conduct. Id. Thus, a written fee agreement is not required to form an attorney-client relationship, In re Disciplinary Proceeding Against McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983), even though a written agreement is required by Rule of Professional Conduct (RPC) 1.5(c) to collect certain

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kinds of fees. Payment of a fee is also not a prerequisite Disciplinary Proceeding Against Egger 152 Wn.2d at 410; Jones, 146 Wn.2d at 306; Bohn, 119 Wn.2d at 363; Restatement (Third ) of the Law Governing Lawyers §14 (2000). Further, the date of a written agreement or receipt of funds does not necessarily dictate the beginning of an attorney-client relationship. Fechner v. Volyn, 3 Wn. App. 2d 716, 418 P.3d 120 (2018). In fact, some clients in an attorney-client relationship do not owe a fee when services are rendered; payments to attorneys are sometimes made by persons who are not themselves clients, including but not limited to insurers in insurance defense cases.

When parties have entered into a written fee agreement or executed an engagement letter, review of whether an attorney-client relationship has been formed will generally begin with an analysis of the agreement, and the terms of the agreement may be determinative. Avocent Redmond Corp. v. Rose Elecs., 491 F. Supp. 2d 1000, 1004 (W.D. Wash. 2007); see also Staron v. Weinstein, 305 N.J. Super. 236, 701 A.2d 1325, 1327-28 (1997), cert. denied, 153 N.J. 214 (1998) (summary judgment reversed and malpractice claim allowed to proceed against law firm where retainer agreement referred to firm as retained even though attorney who prepared agreement was of counsel to firm, was subsequently terminated, and law firm claimed not to know of client's case). If an engagement letter indicates a lawyer's agreement to represent a party, then an attorney-client relationship may have been created regardless of whether the lawyer ultimately performs any work for the party. Avocent Redmond Corp., 491 F. Supp. 2d at 1006.

These basic principles have been summarized in Washington Pattern Jury Instruction (WPI)—Civil, WPI 107.01 (Existence of Attorney-Client Relationship):

(Name of plaintiff) claims that (name of defendant) was acting as [his] [her] attorney. In order to prove this, (name of plaintiff) has the burden of proving each of the following propositions:

(1) That (name of plaintiff) sought or received (name of defendant's) advice on legal matters;

(2) That (name of plaintiff) believed that (name of defendant) was acting as (name of plaintiff's) attorney; and

(3) That (name of plaintiff's) belief was reasonable based on the circumstances, including but not limited to (name of defendant's) words and actions.

6 Wash. Prac., Wash. Pattern Jury Instr.—CIV., WPI 107.01 (6th ed. 2012) (noting in brackets other principles that may be applicable).

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The test under the Restatement (Third) of the Law Governing Lawyers similarly focuses on the "manifest[ation]" by a person of "intent that the lawyer provide legal services" and whether the lawyer "manifests to the person consent to do so" or "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." Restatement (Third) of the Law Governing Lawyers §14 (2000). An attorney-client relationship also may arise by court order. Id. (noting relationship also arises when "a tribunal with power to do so appoints the lawyer to provide services").

The comments to the Rules of Professional Conduct (RPCs) cite to Bohn and Disciplinary Proceeding Against McGlothlen and confirm that "[f]or purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists." RPC Scope cmt. 17; see also RPC 1.18 cmt. 11 ("This Rule is not intended to modify existing case law defining when a client-lawyer relationship is formed.") (citing cases). Thus, the same analysis applies in both the malpractice and disciplinary contexts.

(2) Reasonableness of client's subjective belief

A purported client's subjective belief that an attorney-client relationship has been formed will control the issue only if it is reasonable in light of the attending circumstances. Disciplinary Proceeding Against Egger, 152 Wn.2d at 410-11; Bohn, 119 Wn.2d at 363; see also RPC 1.18 cmt. 2 (emphasizing that unilateral communications by a prospective client to a lawyer "without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship" are insufficient to create such a relationship or to bring the client's communications within the scope of the rule); RPC 1.18 cmt. 10. As explained by one federal court:

The fact that a person is a lawyer, or a physician, or a plumber, or a lion-tamer, does not mean that every relationship he undertakes is, or can reasonably be perceived as being, in his professional capacity.

Lawyers/physicians/plumbers/lion-tamers sometimes act as husbands, or wives, or fathers, or daughters, or sports fans, or investors or businessmen. The list is nearly infinite. To imply an attorney-client relationship, therefore, the law requires more than an individual's subjective, unspoken belief that the person with whom he is dealing, who happens to be a lawyer, has become his lawyer. If any such belief is to form a foundation

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for the implication of a relationship of trust and confidence, it must be objectively reasonable under the totality of the circumstances.

Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991) (emphasis in original).

The reasonableness of a client's belief can turn on the extent to which the attorney manifested or disclaimed the intent to create an attorney-client relationship. An attorney may explicitly agree to represent a client in a given matter, may indicate his or her intent to represent a client through his or her action (or inaction), or may communicate his or her intent through an associate or legal assistant with authority or apparent authority to act for the lawyer in undertaking a representation.

Example 1: Caller leaves Attorney a voicemail message describing a medical malpractice suit that Caller wants to bring and asking Attorney to represent Caller.

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