15.02. Identifying a Current and Former Client

For conflict of interest purposes, identifying whether a client is a “current” or “former” client is critical. As we discussed in the current client chapter, a lawyer is prohibited from going adverse to a current client even in unrelated matters (absent client consent).  As you will learn in this topic, the test for a lawyer going adverse to a former client is much less stringent.  Therefore, lawyers will tend to label clients as former clients as often as possible while clients will seek to have themselves labeled as current clients.

Sometimes it is easy to determine when a client has moved from being a current client to a former client.  However, there are gray areas where a court has to make a determination.  One area where this is a particular problem is with “intermittent” clients.  These are clients that the lawyer has done some work for, but the work is sporadic and the lawyer may go years without representing the client in a matter.  In this situation, the lawyer may see the client as a former client – until a new engagement letter is entered into – while the client may see himself or herself as a current client who can always go back to their lawyer for representation. 

When a court is faced with this situation, they typically take one of two approaches.  First, the court may hold that the obligation is on the lawyer to provide objective evidence that the representation has been terminated.  As one court put it:  “once established, a lawyer-client relationship does not terminate easily.  Something inconsistent with the continuation of the relationship must transpire in order to end the relationship.”[1]  The court went further to state that a “key factor … of whether or not the attorney-client relationship exists is the subjective belie of the client” that is “reasonably based on the factual circumstances of the case.”[2]  Under this test, where a client had not contacted the law firm for more than three years, the client was a continuing current client of the lawyer.  In jurisdictions that follow this standard is likely to require a lawyer to provide a disclaimer or clear notification to the client terminating the attorney-client relationship.           

The second approach is not as stringent.  Some courts hold that since an attorney client relationship is a consensual one, either party can terminate the representation (subject to the ethical limitations on withdrawal).  In these jurisdictions, the test is whether “it would be objectively unreasonable to continue to bind the parties to each other.”[3]  Using this standard courts are more likely to find that a gap in time since the prior representation terminated would be sufficient to find that a client is a former client. 

Notice that in both of these situations the ambiguity arises because the lawyer failed to make it explicit that the prior representation is terminated.  This could easily be accomplished by sending the client a letter that terminates the engagement.  The letter could say something like this:  “We are pleased to report that the judgment rendered in your favor is final and the time for appeal has passed with no further action from opposing counsel.  Therefore, our representation in this matter has come to an end.  Thank you for entrusting this legal matter to us.  I hope we can be of service to you in the future.”[4]  This seems simple enough, but you would be amazed at how many times lawyers do not send out these letters.  Sometimes the failure to send the letter is an oversight, other times, however, it is intentional.  The lawyer may want the client to feel like the lawyer is their lawyer and therefore lawyers are hesitant to send a letter that says that representation is terminated.       

[1] Jones v. Rabanco, Ltd., 2006 WL 2237708, *3 (W. D. Wash. 2006).

[2] Jones v. Rabanco, Ltd., 2006 WL 2237708, *3 (W. D. Wash. 2006).

[3] Artomick Int’l v. Drustar, Inc., 134 F.R.D. 226 (S.D. Ohio 1991).

[4] See Sample Disengagement Letter (Conclusion of Representation):  http://files.lsba.org/documents/PracticeAidGuide/S7TerminationRepresentation.pdf (last visited May 11, 2017).