STARTING AN ATTORNEY-CLIENT RELATIONSHIP: ARE YOU “DATING”, “ENGAGED,” OR HAVE YOU EXCHANGED VOWS?
By David A. Grossbaum, Esquire, Cetrulo & Capone, LLP
Boston, Massachusetts, Providence, Rhode Island
Imagine this common scenario: a client comes to you after having an unfortunate and unsatisfactory result in a medical procedure. The statute of limitations will expire shortly. Your first impressions are that the claim against the medical professional has a great deal of merit, but you clearly need to review the medical records yourself and have them reviewed by an expert before you decide to take the case. Therefore, you are not quite ready to sign a contingent fee agreement with the person. On the other hand, you do not really want the person to seek out another lawyer.
This scenario presents a number of alternatives:
- Are you going to spend time and money to investigate the claim before you sign a fee agreement?
- Are you going to charge the person any fees or out-of-pocket costs while you investigate the claim?
- Do you inform the person as to the statute of limitations or any other issues that might arise while you are still investigating the claim?
- Do you inform the person that you are not yet acting as his or her attorney that they cannot rely on you to protect their rights while you are still investigating the claim?
Each of these choices implicates a basic, but critical, issue: the point at which an attorney-client relationship commences with the person and the scope of your obligations and duties before you actually sign a fee agreement. Unfortunately, there are no clear answers to these questions. There are, however, some basic legal concepts to be familiar with so you can try and steer clear of some of the obvious traps.
I. The Implied Attorney-Client Relationship
The signing of a fee agreement is not the only way that an attorney-client relationship can begin. An implied attorney-client relationship can be created even though the client never signed a fee agreement. As one Massachusetts court put it: “an attorney-client relationship may be implied ‘when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.’” DeVaux v. American Home Insurance Company, 387 Mass. 814, 817-818, 444 N.E. 2d 355 (1983). This third element can “be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them, and the attorney, aware of such reliance, does nothing to negate it.” Sheinkopf v. Stone, 927 F. 2d 1259, 1264, 1266 (1st Cir. 1991) (quoting DeVaux)(emphasis in original).
But the situation is not entirely skewed in favor of the putative client. “To imply an attorney-client relationship ... 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.” Sheinkopf, 927 F. 2d at 1265 (emphasis in original). The client must demonstrate that the implication of the attorney-client relationship is “objectively reasonable under the totality of the circumstances.” Id.
The DeVaux case demonstrates how a lawyer, or his staff, can unintentionally create an attorney-client relationship. The plaintiff in DeVaux fell entering a store and suffered a serious back injury. A few days after the fall, she called the lawyer’s office seeking legal advice. A legal secretary returned the call and advised the plaintiff to write a letter to the store putting it on notice of her injuries. The secretary also arranged a medical examination for the plaintiff with the store’s insurance company and the secretary instructed the plaintiff to write a letter to the lawyer specifically requesting legal assistance. The plaintiff wrote the letter to the lawyer, but the secretary misfiled it, and it remained undiscovered until after the statute of limitations had expired. The plaintiff never once spoke with or visited the lawyer, but called the lawyer’s office on a number of occasions, each time being told that the lawyer would return the calls, which the lawyer never did. Nonetheless, the Court found that there was a factual question as to whether the secretary’s actions created an implied attorney-client relationship.
The DeVaux case also raises issues with respect to whether a paralegal, secretary, or other claim handler in your office can create an attorney-client relationship, even without your knowledge. The DeVaux court found that this was possible, relying on principles of apparent authority and actual authority, and the ethical rules that allow a lawyer to delegate tasks to subordinate lay people and create duties to supervise them.
It is not difficult in many cases for the putative client to satisfy all three conditions for an implied attorney-client relationship. In the hypothetical scenario posited at the beginning of this article, the putative client is seeking advice or assistance from the attorney, the advice pertains to matters within the lawyer’s professional competence, and the lawyer could have either expressly agreed to give advice or assistance, or implied that he would do so. Thus, an attorney-client relationship could exist, triggering all of the duties and obligations that go along with it, even though the lawyer never signed a contingent fee agreement, never gave the person anything whatsoever in writing, and never thought he or she was starting an attorney-client relationship.
The factors that might lead a court to conclude that the attorney impliedly agreed to provide legal services include: (1) whether written correspondence existed with the putative client, (2) whether the person paid the lawyer any money for costs or fees, (3) whether future meetings were contemplated with the lawyer, (4) whether the lawyer discouraged the putative client from talking to other lawyers while the lawyer was looking at the file, (5) whether the lawyer should reasonably have known that the putative client was relying on the lawyer, and (6) whether the lawyer provided any legal advice with respect to any issues, such as statute of limitations or the likelihood of success in the case. Courts will tend not to imply an attorney-client relationship where the attorney would have a potential or actual conflict of interest if he was deemed to be representing the putative client.
II. Limiting the Scope of Your Representation
If, after talking to the putative client, you realize immediately that you have no intention of taking the case, you can clearly state this in a letter, often referred to as a “disengagement letter.” The letter should include statements that: (1) no attorney-client relationship has been formed, (2) the person should not rely on you to protect his or her interests, (3) the person should obtain legal advice elsewhere, and (4) the person must file any complaint before the statute of limitations expires.
Disengagement letters can be as important to protecting yourself from malpractice claims as engagement letters. Many professional liability insurers ask on insurance applications whether firms typically send these, as insurers consider it an important risk management tool.
In many cases, however, you do not want to send the person running off to find a different lawyer. Rather, you need some time to investigate the claim and decide if you want to take the case. Thus, you may wish to establish a limited relationship with the person while you are investigating the case, but not yet assuming the obligation to pursue the case in court.
There is nothing impermissible with a lawyer limiting the scope of his or her representation of a client.
Nonetheless, it is extremely important that this be done in writing so that there is no confusion on the client’s part as to the extent of and scope of this limited representation. This letter could state: (1) that the lawyer is not agreeing to take the case, but is simply conducting an investigation; (2) that the lawyer is expecting and relying on the putative client to take certain steps, such as obtaining medical records or other information, by a certain date; (3) that the lawyer will provide a response within a specified period of time; (4) the costs or fees, if any, the putative client is expected to pay for the lawyer’s investigation; (5) the applicable statute of limitations or other bar dates or deadlines of which the person should be aware; and (6) the need to preserve all evidence related to the case. It would also be helpful to inform the person that, if he or she wants more of a commitment, they can always obtain other counsel.
It is best not to leave loose ends. If there is no viable case presently, but one may develop in the future, do not leave the client with the impression that you are representing the client during this waiting period. That might create duties on you to monitor the situation. If the case is not viable currently, tell the client that you are not representing them at this point, but they can feel free to call you in the future to discuss representation at that point.
As spoliation of evidence issues have become very prevalent, even the limited agreement to collect evidence may create substantial liability for you if you fail to preserve some important piece of evidence. Try to anticipate where the spoliation argument could come from, and make sure you are not leaving yourself open to it. Address this issue in your initial letter to the client.
At this stage, it is important that you obtain all of the necessary facts before you express any opinion about the merits of the putative client’s case. Particularly if you intend to say that the client has no case worth bringing, you need to be certain that you have reviewed sufficient information to be reasonably certain of this. You can expect that the person will rely on your comments, not talk to another lawyer right away and let any deadlines pass. If you do not intend your comments to be the last word on the subject, make it very clear that you have not looked at all of the facts and that you encourage the client to contact another lawyer to do so.
Just because you have not signed a fee agreement does not mean you have no liability to the person or that he or she has not become a client. The best advice is the simplest advice, and the same advice we give our clients: put it in writing. Try to foresee potential issues and attempt to resolve as many as possible in writing. That does not guarantee that there will be no problems, but it does make the problems less likely.