Kansas Bar Journal
Vol. 74 No. 1.
Thinking Ethics: Who is a Client for Conflict-of-Interest Purposes
Vol. 74 No. 1 January 2005Thinking Ethics: Who is a Client for Conflict-of-Interest Purposes?By Mark D. HinderksThe most common form of attorney-client relationship arises when a client expressly agrees to engage an attorney, and the attorney agrees to accept that engagement. Like many things associated with the modern practice of law, however, there may be additional layers of complexity. And though the Model Rules of Professional Responsibility (MRPC) contain guidance concerning the scope of an attorney-client relationship, they expressly leave the establishment of the relationship to other state law. This column will briefly address a few special cases in which an attorney-client relationship may be formed in a different way or in which there may be questions concerning the scope of the relationship. Practitioners should take away the practice-point theme that it is very important (perhaps not always dispositive) to define the extent of an attorney-client relationship in the original engagement, so as to ensure that what may later be said to be the client's reasonable understanding of it is consistent with the original intent.
Implied relationships. Generally, an attorney-client relationship may be implied from conduct alone, where there is evidence of a confidential relationship consisting of either the giving of legal advice or the provision/acceptance of confidential information. See, e.g., In re Adoption of Irons, 235 Kan. 540, 548-59 (1984) (attorney-client relationship arose when individual sought and received legal advice from attorney in a "confidential relationship," notwithstanding initial disclaimer of intent to enter into a relationship by the attorney); Wilson v. Wahl, 182 Kan. 549 (1955) (meetings at which confidences were revealed gave rise to an attorney-client relationship). An attorney-client relationship with a former client can be re-established by the giving of subsequent advice and influence, even without an express agreement for renewed representation. E.g., Alexander v. Russo, 1 Kan. App. 2d 546, 553 (1977).
Corporate family client identification. Does an attorney or firm that represents a corporation thereby have a client relationship for purposes of...