Attorney Malpractice and the Unintended Client Relationship


You're at a school fair with your daughter, and one of the other parents tells you that her importing-exporting company is involved in a contractual dispute and asks for your thoughts. Your firm handles these kinds of cases. Her daughter is one of your daughter's friends. Should you offer your legal perspective?

The risk of speaking freely is that you might create an attorney-client relationship, with all the malpractice exposure that goes with it, when you haven't actually been hired (or paid). There are also other ethical issues to keep in mind during the conversation, but if you choose to proceed -- or find yourself in a situation that you can't easily wriggle out of -- there are some safe practices to follow, such as:

  • Answer general legal questions only,
  • Keep the other person's information confidential, and
  • Pause communications if there appears to be a conflict of interest with one of your other clients.

While it may not seem fair, because you're an attorney, you run the risk of creating an unintended client relationship wherever you go. Read on to learn more about how these relationships can be created and what you can do to protect yourself (and your insurance premiums).

Conflicts of Interest

Most of the time, you can see when it's coming -- usually when someone asks what you do for a living. As soon as the word "lawyer" comes out of your mouth, you know it's just a matter of time before you're hit with the "real quick legal question."

Even on those rare occasions when it looks like a quick answer is within your grasp, you know there's always more to the story. One thing that you need to be concerned about in any of these conversations is the possibility of conflicts of interests. What if you or your firm has represented an adverse party? And how would you even know without first learning information about the issue, information that could very well disqualify you from your current case?

Model Rule of Professional Conduct 1.18 provides some guidance for these situations. It says there's no disqualifying conflict if the lawyer took "reasonable measures" to avoid exposure to more disqualifying information than was "reasonably necessary" to determine whether to represent the prospective client. In other words, you did what you could to stop the conversation after finding out that it could jeopardize existing client relationships.

However, where disqualifying information was obtained, a conflict could exist forcing the lawyer to withdraw from representing a client (or screened from the matter if another lawyer in the firm could take the case). Written notice of the conflict would also be required for both the affected client and the prospective client.

Prospective Clients' Right to Confidentiality

Another issue to be aware of is that, by engaging in conversation with that prospective client, you may owe them a duty of confidentiality. Under Model Rule 1.18, a lawyer who has learned information from a prospective client "shall not use or reveal that information," except as would be permitted with respect to a former client.

The definition of "prospective client" is important here. Under the Model Rule, it means a person who "consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter." The operative rule, of course, is the one that's in effect in your jurisdiction.

Legal Advice and the Unintended Client Relationship

The third and most obvious concern when responding to consumers' legal questions is giving ill-considered advice. No one wants to have to defend an off-the-cuff legal analysis before a state bar's disciplinary committee or in a courtroom.

In responding to casual legal inquiries, keep in mind that an attorney-client relationship can be created by implied contract. An important factor in determining whether one is impliedly formed is whether the consumer reasonably believes that he or she is consulting an attorney in a professional capacity.

If the encounter ends ambiguously, it's not a bad idea to send a "non-engagement letter" to make clear that you are not the person's attorney; perhaps also mention statutes of limitations and recommend that the person seek counsel as a further way to protect yourself.

Social Media and Other Online Interactions

A similar slate of ethical issues can arise when attorneys engage consumers on social media. What can an attorney safely say when replying to queries posted on a law firm's Facebook page or in Twitter conversations?

It's a mistake to treat these online interactions casually. Consumers who pose questions via social media may consider themselves to be consulting a lawyer about their legal matter.

An American Bar Association analysis recommends that attorneys limit themselves to answering general legal questions only, and avoid giving specific legal advice. The DC Bar and others offer similar suggestions.

It can also be helpful to put a conspicuous disclaimer on your social media page or at the bottom of your posts -- and, of course, to be careful to act in a manner consistent with the disclaimer.

Inquiries received via a law firm website, and attorneys' replies to them, can also create a prospective lawyer-client relationship, with the corresponding confidentiality and other obligations, according to an American Bar Association formal opinion. However, disclaimers may be effective if they are prominently displayed and reasonably understandable by a layperson.

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