Establishing a paralegal-client relationship
On Oct. 1 amendments to the Paralegal Rules of Conduct and Paralegal Professional Conduct Guidelines reflecting the Federation of Law Societies’ Model Code came into effect. This is the first of a series of articles to assist paralegals in understanding the amended rules.
In the amended Paralegal Rules of Conduct, the definition of client is expanded. A “client” is defined as a person who
- consults a paralegal and on whose behalf the paralegal renders or agrees to provide legal services; or
- having consulted the paralegal, reasonably concludes that the paralegal has agreed to provide legal services on his or her behalf.
A client includes a client of the firm of which the paralegal is a partner or associate, whether or not the paralegal handles the client’s work.
Under the rules and guidelines, a paralegal-client relationship may arise only if there has been a consultation between you and the client. It may arise without formality even if there is no written retainer agreement.
If you are consulted by a person and you provide legal services to that person, a paralegal-client relationship exists. This will be the case whether you met with the person at your office or in a less formal, or non-business setting, like a social gathering. In this situation, it is the provision of legal services that is the determining factor.
In other cases, where no legal services were provided and you did not agree to provide any legal services, you will need to look at the facts of the situation in order to determine whether a paralegal-client relationship has been established. The key issue in such cases is whether it is reasonable for the person to conclude that you agreed to provide legal services on the client’s behalf.
You should implement procedures aimed at minimizing situations in which you could find yourself in a paralegal-client relationship that you did not intend to establish. For example, you may wish to take minimal information from a prospective client upon initial contact with that person so that you can perform a conflicts search.
In addition, for clarity, you may want to confirm retainers in writing with clients or send out letters confirming that you have not been retained. Sending a non-engagement letter is a best practice in situations where a person might reasonably conclude that, having consulted you, you agreed to provide legal services to that person. To assist paralegals, the Law Society has developed a Non-Engagement Letter Checklist and a Sample Non-Engagement Letter.
Even if the person who consulted with you is not a client as defined under the Rules, you may still owe duties of confidentiality to that person. (See the Paralegal Professional Conduct Guidelines). As a result, you should be cautious in accepting confidential information on an informal or preliminary basis. Possession of the information may prevent you from acting subsequently for another party in the same or a related matter.
See the New Rules page for more information and additional resources.