[ATTORNEY DISCIPLINE]

ETHICS BYTE:
Outlining obligations to the client

by DIANE KARPMAN

An attorney-client relationship is usually created by a fee agreement, which may be expressed or implied. Typically, the attorney will give the client a duplicate copy of the signed agreement, as is normally required by Business & Professions Code Section 6147 and 6148.

Those requirements involving a fee agreement do not apply when the client is a corporation, or when it is anticipated that the services will cost less than $1,000. Even then, sending an engagement letter limiting the scope of the representation to the obligations assumed is advisable. It should contain a clause denying guarantees or representations regarding the outcome of the case. It is wise to delineate the obligations of the parties, including a cooperation clause for the client. It should also contain a disclosure statement regarding errors and omissions coverage, if the lawyer lacks such coverage, and all other requirements of the relevant statute.

An attorney-client relationship may be created in a much more informal and unexpected fashion. Prudent practice requires that the lawyer be mindful of potential liability arising from casual situations.

A relationship can be created because of the conduct of the parties, before or without the execution of a more formalized agreement. A mere consultation with a prospective client, where the client is seeking legal advice with an expectation of confidentiality, can create the relationship even if a formal contract is never executed. Miller v. Metzinger (1979) 91 Cal.App. 3d 31

Often lawyers explain that they did not charge a fee for the meeting services, believing a fee is necessary to create the relationship. This is incorrect. For instance, a lawyer providing services pro bono can be disciplined. Blair v. State Bar (1989) 49 Cal. 3d 762

Some authorities maintain that the relationship may be created very casually - for example, with a simple question at a cocktail party or while dropping off the kids at soccer practice. Generally, more indicia evidencing retention are required. However, it may depend upon the specific facts and circumstances.

Certain factors are given considerable weight in determining the existence of the attorney-client relationship: payment of fees, execution of a formal agreement, assumption of representational obligations, performance of duties, and reasonable expectations of the client. The rules are liberally construed to protect the client. Vann v. Shilleh (1975) 54 Cal.App. 3d 192. Since an "implied" relationship can impose significant burdens and obligations if a formalized attorney-client agreement is never executed, the lawyer should affirmatively disclaim any conceivable relationship to firmly squelch any bubbling client expectations.

If you may have given a possible client the impression that you might take the case, take the time to draft a cover-your-assets letter. Writing a letter now is better than having to later defend against a malpractice claim or State Bar complaint for failing to perform for a "client" who wasn't.


Diane Karpman of Los Angeles represents attorneys at the State Bar and is an expert witness in legal malpractice, conflicts of interest and partnership dissolutions.

[CALBAR JOURNAL]