December 2015 | Earn one hour of MCLE Credit in Legal Ethics
By John DeCure
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Under the Rules of Professional Conduct and Business
and Professions Code section 6068, the vast majority of an attorney’s oaths and
duties are owed to his or her client. These rules make plain that in the law,
the client almost always comes first.
Thus, when a new prospective client comes along, it’s
important for an attorney to be able to discern how, when and whether an
attorney/client relationship has formed. If every encounter between a prospective
client and an attorney occurred in the attorney’s law office and involved a
discussion of a legal problem followed by the prospective client expressly hiring
the attorney and signing a retainer agreement, there wouldn’t be much to consider
here. But sometimes that first meeting can be unpredictable and even unexpected
–just as any would-be client may turn out to be.
This article explores the point of origin of the lawyer/client
relationship and will encourage you, in that moment of new beginnings, to consider
pointedly one question about you and your would-be client: Are we, or aren’t
Unless the attorney is court-appointed, the
attorney/client relationship is generally express or implied by contract,
orally or in writing. (Koo v. Rubio’s Restaurants, Inc. (2003) 109 CA4th
719, 729; Nichols v. Keller (1993) 15 CA4th 1672, 1684.) Most attorney
fee agreements must be written and, in accordance with Business and Professions
Code sections 6147 and 6148, must, among other things, describe the contingency
rate or basis for compensation, how costs will affect the attorney’s fee and
the client’s recovery, the nature of the legal services attorney will provide
and the attorney’s and client’s responsibilities in undertaking the contract.
For the attorney, an express contract put into writing is obviously the way to
go. There’s no better way than to spell out the lawyer’s and client’s obligations
and expectations while minimizing potential misunderstandings.
Implied contracts are far subtler, as they can be formed
anywhere outside the attorney’s office. A ballgame, a barbecue, a cocktail party,
a hot tub – the setting really doesn’t matter. Any place an attorney and
would-be client might talk is a potential ground zero for an attorney-client
relationship to begin. Wood-paneled walls and conference rooms with an A-plus
view are not required; what’s important is the subject matter of discussion. Thus,
the key first question regarding an implied contract would be: Is the prospective client seeking legal advice?
Evidence Code section 951 broadly defines a “client”
for purposes of the attorney-client privilege as “a person or entity who,
directly or through an authorized representative, consults a lawyer for the
purposes of retaining the lawyer or securing legal service or advice from him
in his professional capacity.” (My emphasis added.) If this is what the prospective
client is after, then the next question is whether attorney is agreeing to be
retained or providing the legal service or advice being sought. If the answer
again is yes, then a prima facie attorney/client relationship is
established. (Matter of Peavey (Rev. Dept. 2002) 4 Cal. State Bar Ct.
Rptr. 483, 489.)
This relatively simple formula for an implied contract
is a little scary if, like me, you enjoy discussing the law and ever since you passed
the bar exam, you can’t count how many times a friend, acquaintance, relatives
or virtual stranger has approached you with a burning legal issue.
But you needn’t take a vow of silence or become a
shut-in to deal with this problem. If, when approached, you choose not to
represent someone, you must first do one thing: Make it absolutely clear that you
are refusing employment because a prospective client cannot reasonably believe
an attorney-client relationship exists after the attorney has clearly
refused employment. (Benninghoff v. Superior Court (State Bar) (2006)
136 CA4th 61, 72.) In other words, this is the time to say, “Gosh, I don’t practice tax-evasion law, and I do recognize American sovereignty. So
thanks, but I won’t be representing you.”
Next, understand that what actions you may take are
also important, because an attorney-client relationship can arise from conduct
of the parties. In Lister v. State Bar (1990) 51 Cal.3d 1117, 1125, 1126,
an attorney was asked to file a lawsuit and was provided with the relevant file
documents to do so. No retainer agreement was signed. The attorney prepared a
complaint, but didn’t file it because he had not been paid. The client believed
the attorney was working for her, though he’d abandoned the case. The statute
of limitations expired. The California Supreme Court found that an
attorney-client relationship existed because the client understood that the
attorney was working on the matter, and the attorney’s office did perform work
on the case.
"No formal contract or arrangement or attorney
fee is necessary to create the relationship of attorney and client,” they
noted. “It is the fact of the relationship which is important." (Ibid., citing Farnham v. State Bar (1976) 17 Cal. 3d 605, 612 [131 Cal. Rptr.
661, 552 P.2d 445].) Under the circumstances, the attorney could not simply
abandon the client and let the statute of limitations expire.
People v. Gionis (1995)
9 Cal. 4th 1196, illustrates how closely the nature of the relationship is
scrutinized in cases in which the existence of an attorney-client relationship
is at issue. In Gionis, the defendant was charged with conspiracy to
commit assault and assault with a deadly weapon for hiring two men to brutally
attack his former wife and her boyfriend. Months earlier, when the marital
breakup occurred, the defendant, in a state of emotional distress, had called
his friend, an attorney, who came to his home and consoled him.
During their conversation, the defendant made
incriminating remarks about harming his wife, paying someone to “take care of
her,” and waiting for an opportune time to do so to avoid suspicion. The friend/attorney
told defendant that because he was friends with both defendant and the wife, he
would not represent either of them in a dissolution. At trial, the defendant
sought to bar the friend/attorney from testifying regarding the incriminating
statements, citing attorney-client privilege. But the California Supreme Court found
there was no attorney-client relationship – and thus, no privilege barring
admission of the incriminating statements – because the friend/attorney
specifically stated he would not represent the defendant before the
defendant made the incriminating remarks. (Ibid. at p. 1206.) The court
further noted that even though the defendant and friend/attorney discussed
legal topics, the defendant was talking with the friend/attorney as a friend,
not consulting him for advice in his professional capacity. (Ibid. at p.
Both Lister and Gionis illustrate that
the expectations of the prospective client are important, but a would-be
client’s subjective belief that an attorney-client relationship exists cannot
by itself create such a relationship (See Zenith Ins. Co. v. Cozen O’Connor (2007) 148 CA 4th 998.) Although some courts have scrutinized the would-be
client’s expectations in finding the basis for an attorney-client relationship,
the California Supreme Court in Zenith held that the “hindsight beliefs”
of a prospective client that an attorney-client relationship did, indeed, exist
are legally irrelevant. (Ibid. at 1010.) Unless, that is, the would-be
client’s state of mind was reasonably induced by the attorney’s statements or
conduct. (Fox v. Pollack (1986) 181 Cal.3d 954, 959.)
Such inducements can arise in less traditional
settings that are nonetheless common, such as when an attorney provides advice on
the radio, over the phone or Internet for a nominal fee, or asks a would-be
client to complete a questionnaire. Even an attorney providing “hotline” legal
advice over the telephone can form an attorney-client relationship with a
caller. (See Los Angeles Bar. Assn. Formal Opinion 2006-1.) Rendering legal
advice on the Internet may also give rise to attorney-client duties, and an
attorney interacting with would-be clients on the Internet cannot avoid the
creation of an attorney-client relationship by merely posting a disclaimer that
his communications do not constitute legal advice. (Cal. State Bar Form. Opn.
So yes, the “Are we or aren’t we?” question is
complicated, but your response needn’t be. Be aware of what is being said and
done on both sides – yours and the would-be client’s. If you say yes to
representation, put the agreement down in writing. If you say no, make your
intentions clear up front (a writing here would be a plus, as well). And if
you’re still unsure about going forward, beware of dispensing advice or
performing legal work in a way that would create the impression that indeed, you
really are the prospective client’s new lawyer.
John DeCure is an administrative law judge with the Office of
Administrative Hearings in Los Angeles and a member of the State Bar Committee
on Professional Responsibility and Conduct (COPRAC). He is a former deputy
attorney general and handled attorney ethics matters as a deputy trial counsel
for the State Bar from 1993 to 1998. The opinions here are his own.
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