Learning Outcomes
After reading this article, you will be able to identify when a client-lawyer relationship is formed, distinguish between express and implied agreements, and apply the objective test for reasonable client belief. You will also recognize the scope and consequences of forming the relationship, preparing you to answer MPRE questions on this topic accurately.
MPRE Syllabus
For the MPRE, you are required to understand how and when a client-lawyer relationship is established and the implications for professional responsibility. This article addresses the following syllabus points:
- Recognize the ways a client-lawyer relationship can be formed, including express and implied agreements.
- Apply the objective test for determining whether a relationship exists.
- Distinguish between duties owed to clients, prospective clients, and non-clients.
- Identify the consequences of forming a client-lawyer relationship, including the triggering of ethical duties.
- Understand the scope and limits of representation, including reasonable limitations and client consent.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is required to form a client-lawyer relationship?
- A written retainer agreement signed by both parties.
- Payment of a fee by the client.
- The client reasonably believes the lawyer is providing legal services.
- The lawyer files a pleading on the client's behalf.
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A person consults a lawyer for advice but does not pay a fee or sign any agreement. The lawyer gives legal advice during the meeting. Has a client-lawyer relationship been formed?
- Yes, because legal advice was given.
- No, because no fee was paid.
- No, because there was no written contract.
- Yes, but only if the lawyer later sends a bill.
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Which of the following best describes the test for whether a client-lawyer relationship exists?
- The subjective intent of the lawyer.
- The subjective belief of the client.
- An objective standard based on reasonable belief.
- The existence of a written contract.
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If a lawyer declines representation but receives confidential information from a prospective client, what duty does the lawyer owe?
- No duty, since no relationship was formed.
- Only a duty to return any documents.
- A duty of confidentiality similar to that owed to a client.
- A duty to provide further legal advice.
Introduction
A client-lawyer relationship is the starting point for nearly all professional responsibility obligations. Understanding how and when this relationship forms is essential for the MPRE. The relationship may arise through express agreement, but it can also be implied by conduct or by the reasonable belief of the client. Once formed, the relationship triggers a range of duties, including competence, confidentiality, loyalty, and communication.
Key Term: Client-Lawyer Relationship
The professional relationship that arises when a lawyer provides, or agrees to provide, legal services to a person, or when the person reasonably believes such a relationship exists.
Express and Implied Formation
A client-lawyer relationship can be created in several ways:
- Express Agreement: The most direct method is an explicit agreement, either written or oral, where the lawyer agrees to represent the client.
- Implied by Conduct: Even without a formal agreement, the relationship may arise if the lawyer provides legal advice or assistance and the client reasonably relies on it.
- Objective Test: The key is not the subjective intent of the lawyer or client, but whether a reasonable person in the client's position would believe that the lawyer was providing legal services.
Key Term: Objective Standard
The test used to determine whether a client-lawyer relationship exists, based on whether a reasonable person in the client's position would believe the lawyer was providing legal services.
Reasonable Belief and Reliance
The formation of the relationship depends on the client's reasonable belief, not on payment of a fee or the signing of a contract. If a lawyer gives legal advice or takes action on behalf of a person, and the person reasonably relies on that advice or action, a relationship is likely formed.
Key Term: Reasonable Belief
A belief held by a person that is objectively reasonable under the circumstances, not merely a personal or subjective opinion.
Duties Triggered by Formation
Once a client-lawyer relationship is formed, the lawyer owes the client duties of competence, diligence, confidentiality, loyalty, and communication. These duties apply even if the representation is brief, limited in scope, or provided without payment.
Key Term: Scope of Representation
The extent and limits of the legal services agreed upon between the lawyer and client, which may be expressly limited if reasonable and with informed consent.
Prospective Clients
A person who consults a lawyer about the possibility of forming a client-lawyer relationship is a prospective client. Even if no relationship is ultimately formed, the lawyer must protect confidential information received during the consultation.
Key Term: Prospective Client
A person who consults a lawyer about the possibility of forming a client-lawyer relationship, even if no representation results.
Termination and Declining Representation
A lawyer may decline or terminate representation for good cause, but must avoid misleading the client about whether representation has begun. If the lawyer does not wish to form a relationship, this should be made clear to avoid reasonable reliance by the potential client.
Worked Example 1.1
A woman meets with a lawyer for a free consultation about a possible discrimination claim. The lawyer listens, gives advice about the merits, and suggests next steps. The woman leaves, believing the lawyer is now representing her. The lawyer never sends a retainer agreement or requests payment. Has a client-lawyer relationship been formed?
Answer:
Yes. The lawyer provided legal advice, and the woman reasonably believed she was receiving legal services. The absence of a written agreement or payment does not prevent formation of the relationship.
Worked Example 1.2
A man emails a lawyer describing a legal problem and asks for advice. The lawyer replies, "I am not able to take your case." The man later claims the lawyer is his attorney. Is there a client-lawyer relationship?
Answer:
No. The lawyer clearly declined representation and did not provide legal advice or assistance. There is no reasonable basis for the man to believe a relationship was formed.
Exam Warning
On the MPRE, do not assume that a written contract or payment is required to form a client-lawyer relationship. Focus on whether the client reasonably believed the lawyer was providing legal services.
Revision Tip
Always ask: Did the lawyer provide legal advice or assistance, and would a reasonable person in the client's position believe a relationship was formed?
Key Point Checklist
This article has covered the following key knowledge points:
- A client-lawyer relationship can be formed by express agreement or implied by conduct.
- The objective test is whether a reasonable person would believe legal services were provided.
- Payment or a written contract is not required for formation.
- Duties of competence, confidentiality, loyalty, and communication arise once the relationship is formed.
- Prospective clients are owed a duty of confidentiality for information shared during consultations.
- Lawyers must clearly decline representation to avoid unintended relationships.
Key Terms and Concepts
- Client-Lawyer Relationship
- Objective Standard
- Reasonable Belief
- Scope of Representation
- Prospective Client