In most cases, you know when someone is your client. Your relationship has been formed by an express written agreement. Even if one of the exceptions to the fee agreement statute exists (legal fees of less than $1,000 or an emergency) the circumstances tell you clearly that someone is your client. While the California State Bar Act (SBA) and Business & Professions Code §6148(a) require almost all fee agreements to be in writing, just because you did not require a signed written agreement does not mean that someone cannot claim she is a client.
The SBA was written to protect the public, not attorneys. It creates a one-way liability: failure to comply with the requirement for a written document may “… render the agreement voidable at the option of the client.” Bus. & Prof Code, §6148. If this occurs, the attorney is entitled to collect only a reasonable fee, not necessarily what you would have charged for the work.
Sometimes the attorney-client relationship is not clear. The purpose of this article is to help you avoid inadvertently acquiring a client.
An attorney-client relationship may be inferred from the parties’ conduct, despite the absence of any written agreement. Neither a fee payment nor a formal agreement is required. (Lister v. State Bar (1990) 51 Cal.3d.1117, 1126; Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444).
An implied in fact attorney-client relationship is based on the facts of each case. (Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39; Hecht v. Superior Court (1987) 192 Cal. App.3d.560, 565-566). The “implied” client must show more than that she sought advice from an attorney: “such advice must be sought from the attorney in his professional capacity.” (People v. Gionis (1995) 9 Cal.4th 1196, 1210).
The parties’ intent and conduct are critical considerations. (Hecht, 192 Cal.App.3d 565, 237). Depending on the circumstances, an initial consultation may give rise to an attorney-client relationship (Miller v. Metzinger (1979) 91 Cal.App.3d 31). Also, an attorney-client relationship can be established when the attorney offers to investigate a case, volunteers legal services or otherwise provides legal advice to a prospective client. (Beery v. State Bar (1987) 43 Cal.3d 802, 239).
FACTORS TO IDENTIFY AN ATTORNEY-CLIENT RELATIONSHIP
Below are some of the factors that courts use to determine if an attorney-client relationship has been created by implied agreement. (Reprinted with permission from Rutter California Practice Guide: Professional Responsibility).
· Whether confidential information has been disclosed by the putative client;
· Whether the client reasonably believed he or she was consulting the attorney in the attorney’s professional capacity;
· The amount of contact between attorney and the prospective client;
· Whether the attorney acted or indicated by statements that he or she was representing the client;
· Whether the client furnished the attorney with any information and sought the attorney’s advice;
· Whether the attorney previously represented the prospective client, when, and for how long a period;
· Whether the prospective client consulted the attorney in confidence (Cal. State Bar Form Opn. 2003-161);
· Whether the attorney volunteered his services to the prospective client.
A client must have reasonable expectations: “(O)ne of the most important facts involved in finding an attorney-client relationship is the expectation of the client based on how the situation appears to a reasonable person in the client’s position.” (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733).
A client’s subjective belief that an attorney client relationship exists, standing alone, cannot create such a relationship, or a duty of care owed by the attorney to that plaintiff. It is the intent and conduct of the parties that controls. (Hecht ,192 Cal.App.3d 565-566; Fox v. Pollack (1986) 181 Cal.App.3d 954, 959). “Hindsight beliefs” are not legally relevant (Zenith Ins. Co. v. Cozen O’Connor (2007) 148 Cal.App.4th 998, 1010).
The law seems pretty clear, and you might be tempted to think the unwanted client is not a problem.
“SO YOU’RE AN ATTORNEY? CAN I ASK YOU JUST ONE QUESTION?”
How many times in your career have you heard that question at a party, sports event, religious gathering – or just about anywhere. “So, you’re an attorney, I have one question for you.” (Usually it is more like ten questions.) This is when you may want to say “Regrettably, I only do Tibetan law.”
The question(s) and your response(s) may create an implied attorney-client relationship. One court has said that a “stranger” cannot unilaterally impose an attorney-client relationship upon a lawyer (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.4th 719, 729). What about if a friend or acquaintance asks you a question(s)? It depends, in part, how you answer.
The Rutter Guide points out “although generalized discussion at a cocktail party may not suffice, the more specific the legal advice and the more reasonable the perception that the person is being treated like a client, the more likely the lawyer will be found to owe that person duties of professional care” (California Practice Guide-Professional Responsibility, p. 3-25).
More and more attorneys have websites that allow potential clients and attorneys to communicate. It is safer for the attorney to make potential clients aware of the range of the attorney’s legal services than to provide answers to specific legal problems. While an unsolicited e-mail inquiry may not create an attorney-client relationship (See San Diego Bar Ass. Form. Opn. 2006-1), a court may well look closely at your response. The more obscure the question, the more dangerous to answer it. For an excellent discussion of what to say (or not to say) on the Internet or on the telephone with a prospective client to avoid creating an implied client relationship, see Rutter, Chapter 3, p. 3-34.
If an attorney charges even a nominal fee for advice given over the Internet or telephone or asks a prospective client to fill out a questionnaire, this may give the person a “reasonable” belief that she is a client. Posting a disclaimer that all Internet communications do not constitute legal advice will not necessarily avoid the creation of an attorney-client relationship (Cal. State Bar Form. Opn.2004-165). A general newsletter subscriber, on the other hand, may have a much more difficult time proving that the attorney writer is their attorney.
Rutter provides one example of an effective way to disclaim the formation of an attorneyclient relationship. A website would require a user to click on a statement that states no attorney-client relationship will exist if attorney responds to question.
No attorney ever wants to write one more letter that he cannot bill. I strongly recommend, however, that you make a practice of sending written confirmation of non-engagement to every person who contacts you electronically or otherwise for legal advice or representation if you decide not to represent her. In your communication to her simply state that you have declined to provide legal services. Do not give any legal advice; do not comment on her case. Mention that the case may be barred if legal action is not taken within certain time limits provided under California law. If you believe that the statute of limitations may expire soon, you may want to state that, but be sure to also state that other statutes of limitations may apply and she must find this out for herself. Always encourage the non-client to immediately seek the advice of another lawyer. I would not suggest that you recommend a lawyer, but, if you do, be sure to give at least three names. You may want to send these communications by e-mail, certified mail and regular mail.
There are other significant issues related to the formation of an attorney-client relationship that are not discussed in this article. For example, the issue of attorneys in corporate situations, in which multiple parties may perceive that they are dealing with their attorney (Gulf Insurance Company . Berger, Kahn et al (2000) 79 Cal App.4th 74).
Regardless of the situation, when there is no signed retainer, beware of creating an implied attorney-client relationship.
Ben Bycel practices in Santa Barbara. He is the former dean of the Ventura and Santa Barbara Colleges of Law.