Ethically Speaking
| Publication year | 2012 |
| Pages | 40 |
| Citation | Vol. 35 No. 4 Pg. 40 |
Vol. 35, No. 4, 40. Ethically Speaking
Issue: August, 2012
Forming the Lawyer-Client Relationsliip, Part 1 Tlie Nature and Elements of the Relationship
Every time a lawyer represents a client, he or she forms a lawyer-client relationship. It would seem obvious, therefore, that forming such a relationship would be both clear and simple. Unfortunately, it is neither, and, far too often, the existence and boundaries of the relationship are not clear to either party, with potentially disastrous results for both. This column, and the two or three that follow, will address the nature and elements of the relationship, how the relationship should be formed, how the relationship should be terminated and the potential consequences if the relationship is neither formed nor terminated properly.
As the Wyoming Rules of Professional Conduct ("the Rules") generally regulate how Wyoming lawyers are to behave, one might reasonably think that the Rules would regulate the formation and the termination of the lawyer-client relationship. Unfortunately, such a belief would be incorrect. Among the many questions that the Rules do not answer are how and when a lawyer-client relationship is formed or ended. In fact, the scope section of the Rules, part of the introduction that provides "general orientation"(fn1) to the Rules, says: "substantive law external to these Rules determine [s] whether a client-lawyer relationship exists."(fn2) It is clear, therefore, that one must look to the substantive law of Wyoming to determine when a lawyer-client relationship exists, and how that relationship is to be formed or terminated. Fortunately, the Wyoming Supreme Court has addressed important issues regarding the lawyer-client relationships, including the nature of the relationship, how it is formed, and the importance of using written agreements to define the existence and parameters of the relationship.
The Nature of the Lawyer-Client Relationship
Perhaps the first significant issue regarding the lawyer-client relationship is to determine the nature of what the Supreme Court has described as the "peculiar relationship"(fn3) between a lawyer and the lawyer's client.
While a lawyer is a fiduciary''(fn4) for each client, the relationship between the lawyer and the client is contractual in nature.(fn5) As with any contract, it may arise by express agreement between the parties, or it may be implied from the conduct of the parties:
'[F]ormality is not an essential element of employment of an attorney. Although the attorney-client relationship ordinarily rests on contract, the contract need not be an express one. It may be implied from the conduct of the parties, such as the giving of advice or assistance, or such as failing to negate the relationship when the advice or assistance is sought if the attorney is aware of the reliance on the relationship. The general rules of agency apply to the establishment of the relationship. Whether the relationship exists depends on the facts and circumstances of each case.'(fn6)
Further, "[p]ayment [of fees] maybe an important question, but it is not essential to the existence of an attorney-client relationship."(fn7) Given the foregoing, the concern for lawyers should be the possibility that a contractual relationship may arise from the conduct of the parties. The reason is, as discussed below, three of the four elements of the lawyer-client relationship generally exist, regardless of the lawyers actions, because all three are within the control of the client. Furthermore, the burden will be on a lawyer to defeat a client's expectations, and the failure to do so may lead to the inadvertent creation of a lawyer-client relationship.(fn8)
In Carlson v. Langdon, the Wyoming Supreme Court made it clear that when determining whether a lawyer-client relationship exists, the focus will be on the client's reasonable expectations, not the lawyer's.(fn9 )Accordingly, unless the lawyer has done something to defeat a person's reasonable belief that the lawyer represents that person, the lawyer does.(fn10) The determination that a lawyer represents a client has potentially serious consequences for the lawyer. The lawyer is subject both to a plethora of ethical duties,(fn11) the Rules regarding conflicts, and, as happened in Carlson, possible disqualification because of a conflict of interest.
The Elements of the Lawyer- Client Relationship
While the Wyoming Supreme Court has never specified the elements of the lawyer-client relationship, other courts have, and the elements are both well established and implicit in the decisions of the Wyoming Supreme Court.(fn12) The elements of the lawyer-client relationship consist of: (1) a person contacts a lawyer; (2) for the purpose of obtaining legal advice or representation; (3) the lawyer undertakes to give the advice or provide the representation, or the lawyer fails to clarify that the lawyer will not provide the advice or representation; and (4) the person relies on the lawyer's actions or inactions.(fn13)
As the foregoing elements indicate, only the third element, that the lawyer undertakes to give legal advice or representation or fails to clarify that he or she will not do so, is within the lawyer's control. The first two elements, that a person contacts a lawyer to obtain legal advice or representation, are both within the exclusive control of the prospective client (not everyone...
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