

Evaluating the Existence of an Attorney-Client Relationship

When evaluating a lawyer’s potential liability for professional misconduct (or malpractice) one of the threshold questions involves the existence of an attorney-client relationship.

While attorneys may occasionally incur malpractice liability in cases where no attorney-client relationship existed, these are exceptions. As a rule, the attorney owes a duty of professional competence to clients, and almost all plaintiffs seeking to recover malpractice damages from an attorney will need to prove that an attorney-client relationship existed at the time the attorney’s allegedly wrongful conduct occurred.

Is Corporate Counsel Also Counsel to Shareholders?

Generally speaking, both the attorney and the client must consent to the existence of an attorney-client relationship, and they must do so individually. In many (if not most) cases, attorneys who represent entities (like corporations) are not considered to have an attorney-client relationship with individual stockholders, because of the corporation’s status as a legal entity. Although the corporation has consented to representation by the attorney (and vice versa) the corporation’s counsel is not normally considered counsel to the individual company members or stockholders.

An exception to this may occur in situations involving closely-held corporations; sometimes, legal counsel to the corporation does represent one or more shareholders. While not illegal per se, this situation does create the potential for conflicts of interest (and, at times, malpractice) if the attorney is not careful to delineate who (s)he is–and is not–representing at any given time. Some conflicts of interest are waiveable by the client, while others are not.

Is Probate Counsel Also Counsel to the Estate’s Beneficiaries?

Generally, no, and certainly not automatically. Probate counsel hired by the executor to assist with estate administration (or hired by the trustee of a trust to assist with trust administration) is generally considered to represent the trustee, executor, and/or estate, but not the individual beneficiaries. Beneficiaries of an estate or trust have the legal right to obtain independent legal counsel, and should do so if the facts (or the trustee’s behavior) raise questions about the beneficiaries’ legal rights.

Is an Attorney-Client Relationship Formed by an Initial Consultation?

Not necessarily. While meeting with a lawyer may result in formation of an attorney-client relationship, either during or at the end of the meeting, the fact that a potential client meets with an attorney–without more–is not normally enough to create an attorney-client relationship.

If you meet with a lawyer, and want to retain the lawyer to represent you, make sure to obtain a written engagement letter or retainer agreement that states an attorney-client relationship exists, and describing the scope of (and costs associated with) the representation.

Attorneys should not only document attorney-client relationships in writing, but also provide written notice to potential clients the attorney decides not to represent, to ensure the prospective client doesn’t erroneously believe an attorney-client relationship exists.

What method is used to prove the existence of an attorney-client relationship?

The easiest method of proving an attorney-client relationship is a written retainer agreement or engagement letter describing the existence and scope of the attorney’s representation of the client.

However, courts can and do use other evidence to establish the existence of attorney-client relationships, including the parties’ behavior, correspondence between the attorney and the client, invoices for services rendered, proof of payment made to the lawyer, and other relevant facts or information.



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