Hello There, Are You My Attorney? F
By Kristina Rost
ormation of an attorney-client relationship is an evolving matter to be re-examined continuously as methods of communication
change in geometric progression. Would the relationship be created based on an initial client contact by phone? By responding to a website inquiry? By answering questions following a seminar, an article, a publication? Would having an initial consultation create an attorney-client relationship? And what if the consultation was free?
In analyzing these scenarios, it is useful to apply basic principles to determine whether the attorney- client relationship ensued at the inception of a contact. Model Rule 1.18 sets forth a few limitations on communications with a prospective client who does not become a client. Comment 2 to Rule 1.18 specifies that prospective clients are afforded some protection, albeit not as much as actual clients. The key here is to distinguish between “prospective client” (when information is discussed with an attorney, but the person never becomes a client) and “a person” who does not become a prospective client (even in situations when some information is released to an attorney).
In this case analysis one can see the logic that has been used by various courts nationwide in dissecting
attorney-client relationship formation. Curiously enough, the court in Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265-66 (Tex. App. Corpus Christi 1991, writ denied) concluded that a “reasonable attorney” knows when an attorney-client relationship is formed following the encounter she had with a prospective client. As ethic management gurus say, it is important to listen to your “gut feeling” on whether the situation is taking a turn to becoming an unwanted relationship. For instance, if you are speaking by phone with a first- time caller, are there too many details being given that you do not want to know? What can you do to make sure this person does not feel that since you have heard her “whole story” you are her attorney by definition?
The court in United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass.1950) developed a few prongs helpful in evaluating whether an attorney-client relationship has been established. A wonderful narrative of the current general law discusses a number of common scenarios and modern approaches in resolving them. The common thread in all inquiries appears to be whether a client sought legal advice and could be reasonably found to have received
it. Be sure to read the famous Togstad case (Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980)) to gain a deep understanding of the court’s level of inquiry. The Minnesota Office of Professional Responsibility published a brilliant analysis of this case and newest developments in this area.
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Kristina Rost is the current Chair of AILA Ethics and Practice Management Committee and a partner of Maged Rost PC (MA).
In sum, the trend of the case law is that an attorney- client relationship can be found to exist when a client reasonably believes that an attorney has become her lawyer and reasonably relies upon advice given by the attorney. A simple rule maybe helpful: when the advice is sought by the client, given by the lawyer and acted on by the client, an attorney-client relationship is likely found to exist. Merely offering general advice in response to a general inquiry is not likely sufficient to create the relationship. Nor does payment of a fee play any role in solidifying the formation. There is a distinction between responding to specific questions and offering advice based upon specific circumstances and answering general questions in a social setting. The key is to avoid applying law (your expertise in it) to a person’s specific set of facts so that she may reasonably act on it.