The Implied Attorney-Client Relationship A Trap for the Unwary, 0320 COBJ, Vol. 49, No. 3 Pg. 46

AuthorBY DAVID N. SIMMONS AND DAVID H. WOLLINS
PositionVol. 49, 3 [Page 46]

49 Colo.Law. 46

The Implied Attorney-Client Relationship A Trap for the Unwary

Vol. 49, No. 3 [Page 46]

Colorado Lawyer

March, 2020

PROFESSIONAL CONDUCT AND LEGAL ETHICS

BY DAVID N. SIMMONS AND DAVID H. WOLLINS

An implied attorney-client relationship can be created when an individual reasonably believes he or she is represented by a lawyer. This article considers the conflict of interest that may result in this situation.

Many lawyers are unaware that an implied attorney-client relationship can exist in the absence of a formal agreement for representation and payment of a retainer. Even less understood is the fact that once an implied attorney-client relationship exists, the duties described in the Colorado Rules of Professional Conduct (the Rules) govern the representation. One of the duties that may cause an unwary lawyer trouble is the duty to avoid conflicts of interest under Rule 1.7. This article aims to help lawyers identify and avoid such conflicts of interest.

Creating an Attorney-Client Relationship

Rule 1.7 generally describes conflicts of interest in the lawyer-client relationship. It begins with the admonition that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” But what is “representation”? Put another way, how is an attorney-client relationship created? Unfortunately, while the Preamble to the Rules recognizes the importance of this question, it does not answer it, stating instead, “for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.”1

However, the Preamble provides some guidance by clarifying that ‘‘[m]ost of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so.’’2 This is similar to the oft-cited answer to the question in the Restatement (Third) of the Law Governing Lawyers:

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 the 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 . . . .3

The Implied Attorney-Client Relationship

The answer above approaches the representation question from the lawyer’s perspective. Clients, however, may not answer the question in the same scholarly fashion. As a result, both courts and ethics committees have recognized and enforced an “implied” attorney-client relationship. This implied relationship is far more nebulous than the formal relationship recognized by scholars. As one commentator noted: “It appears that no comprehensive study of the implied attorney-client relationship exists, probably because the relationship depends very much on what an individual court says it is.”4

Seattle lawyer and ethics lecturer Evan L. Loefer captured the essence of the implied attorney-client relationship when he wrote:

Life would be a lot simpler if there was theme music or a gong that would sound when something momentous occurs. Even if there were such a cue, there would be a lot of variation from case to case on when the attorney-client relationship started. Many attorneys take the position that the attorney-client relationship commences only after the attorney agrees to representation. Others say it only occurs after a client interview takes place, a fee agreement is signed, and a retainer or fee deposit check has cleared the bank. Unfortunately, it’s more complex than that.

The relationship begins when there is a mutual understanding that the client is going to confide in the attorney and the attorney is going to listen. The attorney-client relationship may...

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