What is the accidental attorney-client relationship? This is a relationship that is formed most often after the potential client has consulted with an attorney and the potential client leaves the office mistakenly believing that the attorney has “taken their case.”
The key to this accidental relationship is that the attorney-client relationship has commenced in the eyes of the client, therefore imposing certain professional obligations and duties on the attorney. The attorney-client relationship can be created purely in the mind of the client and the attorney can still be held liable for any failures to act on behalf the client, usually in the form of missed deadlines and the expiration of the statute of limitations. Contrary to popular belief, the lack of a signed retainer agreement or engagement letter is not determinative of whether the attorney-client relationship exists.
In most instances, lack of a fee being paid by the client to the attorney does not mean that an attorney-client relationship has not commenced. In explaining this policy, the Florida Supreme Court stated that “if a fee were required to establish an attorney-client relationship, a lawyer could never perform work pro bono for a client.” Florida Bar v. King, 664 So.2d 925 (Fla. 1995). Additionally, in certain cases, such as a personal injury case taken on a contingency fee, a client may not be required to pay any fees up front and the attorney-client relationship can still be commenced.
All of the foregoing scenarios could be combined (the relationship has formed in the client’s mind, no retainer has been signed, and no fees have been paid) and an attorney-client relationship still could have commenced. So how can your firm avoid the pitfalls and potential malpractice associated with the accidental attorney-client relationship? Here are just a few suggestions:
After every consultation with a potential client, have the client sign a document specifying that the law firm has not been retained by the client to represent them in any matter. In the same document, you should also indicate that should the potential client subsequently decide to retain the law firm, a written retainer agreement or engagement letter will need to be executed by both the potential client and the lawyer and a fee paid before representation is commenced. A copy of this document should be provided to the client prior to their departure and maintained by the law firm in with the potential client files or conflict management files.
If you provide a consultation over the phone and cannot have the client execute a document, then your firm should draft correspondence to the potential client indicating that representation only commences after a retainer agreement/engagement letter has been signed and a fee paid. A copy of the correspondence should be maintained by the law firm in the potential client files or conflict management files.
If you have advised a current client on an issue unrelated to the matter for which the client retained the law firm, then correspondence declining representation of the client on the unrelated issue should be sent to the client. Correspondence declining representation should indicate the issue discussed and reiterate that the law firm has declined to represent the client in the matter.
AVOID providing “casual” legal advice to clients, friends, family, and strangers. A two-minute phone call from a family friend regarding their son’s DUI arrest can result in the commencement of the attorney-client relationship. The off-handed remark you made at a cocktail party regarding a legal dispute in which the host was involved in can create the attorney-client relationship.
Being aware of the accidental attorney-client relationship and the potential pitfalls associated with the same can help you to be mindful of the casual legal advice you may provide in your everyday life. Be sure to use the necessary tools to protect your firm from any liability associated with the accidental attorney-client relationship.