Establishing a lawyer-client relationship
On Oct. 1 amendments to the Rules of Professional Conduct reflecting the Federation of Law Societies’ Model Code came into effect. This is the first of a series of articles to assist lawyers in understanding the amended rules.
In the amended Rules of Professional Conduct, the definition of client is expanded. A “client” is defined as a person who
- consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or
- having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf.
A client includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work.
The commentary to rule 1.1-1 provides that a lawyer-client relationship may be established without formality. This means that no retainer agreement or monetary payment is required to establish a lawyer-client relationship.
Under the rules, if you are consulted by a person and you provide legal advice to that person, a lawyer-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. It is the provision of legal advice that constitutes rendering legal services.
In other cases, where no legal services were rendered and you did not agree to render any legal services, you will need to look at the facts of the situation in order to determine whether a lawyer-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 render legal services on the person’s behalf.
You should implement procedures in your firm aimed at minimizing situations in which you could find yourself in a lawyer-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 and determine if you can take on the retainer.
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 have agreed to render legal services on that person’s behalf.
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 [rule 3.3-1]. 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 [section 3.4].
See the New Rules page for more information and additional resources.