7.01. Introduction

This topic covers a lot of ground. The first thing we discuss is a strange animal called a “prospective client.” This category of individual is not a client, but is also not a non-client – it resides somewhere in between. The two extremes are (for the most part) easy. If a person is not a client, the lawyer owes very few obligations. If the person is a client, the full panoply of ethical and professional responsibilities of the lawyer kick in – for example, the duties of loyalty and confidentiality. The lawyer also faces the specter of malpractice liability since an element of a malpractice claim is that an attorney-client relationship exists (with a few exceptions).

The traditional dichotomy of client/no client creates an anomaly in the situation where an individual comes to a lawyer to discuss a potential claim – expecting that the lawyer will take their case or at least keep the conversation confidential and not go adverse to the person in the same matter they discussed. That may be the expectation – but what obligations (ethical and substantive) does the lawyer owe to the person that they speak with about their case but then never take? We know that in the legal malpractice context, courts have been willing (although rarely) to imply the existence of an attorney-client relationship to protect client expectations (see Togstad). However, until 2002, the ethics rules did not have a separate rule addressing a lawyer’s ethical obligations to a prospective client. In 2002, the ABA adopted Rule 1.18 which was intended to address the omission. We will examine how far-reaching the lawyer’s obligations under Rule 1.18 are and the consequences when a lawyer fails to satisfy her obligations to the prospective client. We move from the obligations to a prospective client to examining the formation of the attorney-client relationship. You will see how the attorney-client relationship can be formed through mutual agreement of the lawyer and client or can be implied based on the actions of the parties. As a lawyer, you will never want a court to find that you have an “implied” client, and you will want to take steps to ensure that there is no confusion about whether or not you are accepting a particular case. To this end, we will discuss the retainer agreement and some “do’s and don’ts” when drafting such an agreement. We will finish up the topic discussing termination of representation. Termination can occur at the conclusion of the matter, when the client fires the lawyer, or by the lawyer seeking to withdraw.