Myth #9 - The myth: you do not have an attorney-client relationship unless money changes hands. If my firm had collected $1.00 for each of those tacit bits of legal advice dispensed as a courtesy, we could retire yesterday! Yet in each, a client relationship was established. What then is the criteria?
Once again, simple but complex – the rule is that the “client” had a reasonable expectation that such a relationship would be or was established. Before trying to understand that, we should consider the benefit which the “client” is expecting from the relationship. Buried in these imaginings are additional myths. While there may be other “benefits”, these capture the most important:
- Confidentiality
- Exclusivity (as to that matter) – that is, counsel is legally unable to represent the adverse party
- Accountability for advice given
- The right to future services
Confidentiality. If you have an appointment with an attorney who knows, based upon you setting the appointment, that you want defense against a suit by X for some alleged obligation, then you can expect confidentiality - usually. If you tell the attorney that you are going to do a particular thing because you are angry with X, and the attorney is aware that this is a criminal act you are proposing, then forget confidentiality. If you obtain advice from the attorney, and without his or her knowledge, use the advice to commit a fraud, forget the confidentiality. Those are not reasonable expectations of confidentiality even in an attorney-client relationship. A recent fraud involving counterfeit Cashiers Checks sent to attorneys, with a legal fee to be withdrawn, and the balance sent to the client DOES NOT give an attorney-client relationship or privilege.
Exclusivity. You speak to an attorney you barely know at a function you both attend, and in a conversation blurt out facts about a problem that you have with Y, and are thinking of filing suit; does he do that kind of work? Unfortunately, the attorney represents Y regularly - what now? This is difficult. The setting is not one in which you could reasonably expect confidentiality; however, if you and Y went to court, this attorney may have to first ask the court to determine if he is disqualified from representing Y. That is likely to upset Y, and the time to ask the court for a ruling will likely be at the attorneys expense. He could also lose Y as a client. Do you understand now why attorneys are reluctant to be "open" to such discussions?
What if you were an attorney, and in your early morning e-mail you received a solicitation from someone you don't know, telling you all their dirty secrets, and asking you to consider their case. Assume that the story draws you in before you realize what is being asked. Are you bound to NOT represent the adverse party in this person's matter? No. Until a few months ago, here in Florida the answer would have been "maybe." States are now dealing with this more than ten year old question, and for most, the decision has been that such blanket solicitations have no reasonable expectation that an attorney-client is established. These solicitations come by e-mail,USPS, telephone calls, any of the other delivery services, and soon, I am sure, texting, Twitter and other means. This is usually someone trying to conflict potential opposing counsel out of representation - unsuccessfully now that the issue is settled here. Be aware that the rules do vary in other states.
Accountability. The coffee klatsch advice is dangerous. In any area of law, there are details which can turn an issue on its head, and lead to a different conclusion and result. A conversation is a poor way to record what advice was given, if any. Each of tries to record the discussion at a later time, but it is impossible to fully do so. If you were to ask me if the sun is shining, I might first ask if you were asking the lawyer in me for that answer. Do not laugh! Alright, so you could not help yourself! The lawyer in me would answer, "Define shining." Believe me, every conversation, even those in this information, is flavored with, "Seek professional advice" because digging out all the relevant facts is difficult. Equivocal answers are given in an uncertain world, and ours is all of that. Yes, we are accountable for our advice; yes, despite evidence to the contrary, we are human - we feel for our clients and really want to solve their problems. We must avoid an indiscreet bit of advice, for it can, has and will bite us.
Future Services. With rare exception, the access to counsel is based upon employment accepted by counsel and proper compensation. Usually we have an agreement that says cooperation, timeliness, etc, although the case law shows this to be implied. We DO NOT have to work for someone who doesn't pay per agreement, fails to cooperate and assist, or acts belligerently and abusively. We cannot drop our client in the mud, for example in the middle of a trial, but we can withdraw except where such would prejudice the client. At a certain point in some Federal matters, judges will not allow withdrawal. That is why counsel who starts a Federal case usually requires a sizable retainer, unless the matter is contingent.
