Hofstra Law School: Lawyer Malpractice Class #2.
I. What does it take to form a client-lawyer relationship?
Restatement of the Law Governing Lawyers (ALI 2000) (hereafter RLGL)
§ 14. Formation of a Client-Lawyer Relationship
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
a. the lawyer manifests to the person consent to do so; or
b. the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services;
(2) a tribunal with power to do so appoints the lawyer to provide the services.
It really takes very little to start a Client-Lawyer Relationship. That may be good in terms of getting clients. But it can be very risky in terms of incurring liability for malpractice to the client. Ultimately, the question to ask is: Who is my client?
One party’s unilateral beliefs and actions , standing alone, does not necessarily confer upon him or her the status of client.
Moran v. Hurst, 32 AD3d 909, 822 NY2d 564
Solondz v. Barash, 225 AD2d 996, 639 NYS2d 410
Read Pam Bresnahan’s article from the American Bar Association Journal about how little it takes.
Then, read each of the following cases:
In re Palmieri, 76 N.J. 51 (1978)
Procanik v. Cillo, 226 N.J. Super 132 (1988)
Togstad v. Vesely, Otto, Miller et al, 291 N.W. 2d 686 (1980)
Jordan v. Lipsig Sullivan, et al 689 F. Supp. 192 (DNY 1988)
How to you document the start of the Client-Lawyer Relationship ?
Rules of Professional Conduct (hereafter RPC)
RPC 1.5 Fees
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated in writing to the client before or within a reasonable time after commencing the representation.
The New York Rule:
22 NYCRR §1215.1
(a)…an attorney who underakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter (i) if otherwise impracticable or (ii) if the scope of services to be provided cannot be determined at the time of the commencement of representation. For purposes of this rule, where an entity (such as an insurance carrier) engages an attorney to represent a third party, the term “client” shall mean the entity that engages the attorney. Where there is a significant change in the scope of services or the fees to be charged, an updated letter of engagement shall be provided to the client.
(b) the letter of engagement shall address the following matters:
(1) Explanation of the scope of the legal service to be provided;
(2) Explanation of attorney’s fees to be charged, expenses and billing practices; and, where applicable, shall provide that the client may have a right to arbitrate fee disputes…
(c ) Instead of providing the client with a written letter of engagement, an attorney may comply with the provisions of subdivision (a) by entering into a signed written retain agreement with the client before or within a reasonable time after commencing the representation, provided the agreement addresses the matters set forth in subdivision (b).
§ 1215.2 Exceptions
This section shall not apply to (1) representation of a client where the fee to be charged is expected to be less than $3000, (2) representation where the attorney’s services are of the same general kind as previously rendered to and paid for by the client, or (3) representation in domestic relations matters…, or (4) representation where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New Yoir, or where no material portion of the services are to be rendered in New York.
CAVEAT: Failure to have a written engagement letter or agreement does not prevent a client-lawyer relationship from coming in to existence. But it can certainly have a negative impact if the client refuses to pay you for any reason and you have to sue the client to pay you (not a good idea in any event, which we’ll discuss, soon enough.)
The existence of a client-lawyer relationship does not depend on a formal retainer or the payment of a fee.
Moran v. Hurst, 32 AD3d 909, 822 NYS2d 564
Tropp v. Lumer, 2005 NY Slip Op. 872 (App. Div.)
Jane Street Co. v. Rosenberg & Estis, PC, 192 AD2d 451, 587 NYS 2d 17.
II. What does it take to define or limit the scope of the client-lawyer relationship?
RLGL § 19. Agreement Limiting Client or Lawyer Duties
(1) Subject to other requirements stated in this Restatement, a client and lawyer may agree to limit a duty that a lawyer would otherwise owe to the client if:
(a) the client is adequately informed and consents; and
(b) the terms of the limitation are reasonable in the circumstances.
(2) A lawyer may agree to waive a client’s duty to pay or other duty owed to the lawyer.
* * *
RPC 1.2 (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
How broad is the scope of the client-lawyer relationship? These next linked cases will give you some insight into how to narrow the scope of the relationship and whether that can save save you from liability for professional mistakes outside the scope of the relationship.
Campbell v. Fine Olin, 168 Misc. 2d 305 (NY 1996)
Greenwich v. Markhoff, 650 N.Y.S.2d 704 (App Div. 1996)
Lerner v. Laufer, 359 N.J. Super. 201, 819 A.2d 471 (App Div. 2003)
Estate of Albanese v. Lolio, 393 NJ Super 355 (App Div. 2007)
III. What does it take to End the Client-Lawyer Relationship?
RLGL § 31. Termination of a Lawyer’s Authority
RLGL § 32. Discharge by a Client and Withdrawal by a Lawyer
RLGL § 33. A Lawyer’s Duties When a Representation Terminates
RPC 1.16 Declining or Terminating Representation
Gilles v. Wiley, Malehorn & Sirota, 345 N.J. Super 119 (App Div. 2001)
Disengagement Letters
Suggested Readings: Fortney & Johnson, Legal Malpractice Law, Ch. 3 pages 35-50.
Tagged with: Attorney-client relationship, CLE & Law School Course, Client-Lawyer Relationship
Posted in: CLE & Law School Course