Aren’t you my lawyer? I’m not your lawyer.

 In Legal Malpractice

Avoiding the establishment of an implied attorney-client relationship.

I attended the American Board of Professional Liability Attorneys (ABPLA) annual conference last week in San Francisco. It was a busy couple of days full of networking and seminars. One of the most interesting discussions was about implied attorney-client relationships, led by Fred McClure of DLA Piper’s Tampa office.

When Fred shared some hypothetical situations, I was surprised at the amount of debate among attending attorneys. I hope that it will also stimulate some discussion among my blog readers and LinkedIn group members. Please let me know your thoughts, or join the discussion in our LinkedIn group.

You be the judge – was an attorney-client relationship established?

social2Attorney Bob was talking with his friend Sue at a cocktail party. Sue’s husband (also a very good friend of Bob) recently had surgery, and complications from that procedure kept him from attending the party. After describing the mistakes she felt the doctor made, Sue asked Bob if the doctor committed medical malpractice. Wanting to help, Bob said that he would talk to his partner, who was more familiar with medical malpractice cases, and get back to Sue. Bob mentioned the situation to his partner, who felt there may be a claim, but forgot to follow up with Sue. [Cue ominous music.]

After not hearing back from Bob, Sue assumed there was no medical malpractice claim. A year later, Sue called Attorney Clark and asked Clark if he thought there was the possibility of a medical malpractice claim. Clark, a savvy medical malpractice lawyer, quickly saw that there was indeed a claim and informed Sue. Unfortunately, by that time the statute of limitations had run out. Was an attorney-client relationship established between Bob and Sue? Did Bob commit legal malpractice?

And the jury finds for the plaintiff…

Actually, the Minnesota Supreme Court ruled on a very similar situation in the 1980 case of Togstad v. Vesely, Otto, Miller & Keefe. The court held that the defendant attorney who had been sued for legal malpractice entered into an implied attorney-client relationship with a husband and wife during a discussion on the viability of a medical malpractice claim. Although the attorney testified that he only suggested that the couple get a second opinion, the court didn’t agree. The couple was awarded nearly $650,000.

Watch out what you say at the next neighborhood barbeque

Most of us became lawyers because we want to help others resolve their problems. Just as others are inclined to ask us for advice, we have a natural inclination to step in and help. We need to know when to temper that urge to avoid situations where an obligation might be assumed. Here are a few ideas to politely extricate yourself from these casual conversations:

  • Unfortunately, I don’t handle malpractice cases. Talk to Douglas over there (just kidding).
  • Please get your information together and let’s schedule a meeting next week at my office.
  • I would be happy to do you a favor, but we’ll need to meet before I can offer an opinion.
  • How about if we talk baseball this evening, and talk about your issue next week in my office?
  • Do you have a credit card?

What about prospective client emails and web forms?

At the ABPLA seminar, there was also some debate about prospective clients who send unsolicited email messages to attorneys with case details, although overall the group agreed that these messages do not form an implied attorney-client relationship if the attorney never responds. In other words, it would not be reasonable for the prospect to believe there was an implied attorney-client relationship if the attorney never responded to unsolicited emails from the prospect.

But what about website contact forms, where the lawyer is essentially reaching out to prospects? The group was more evenly divided here, but agreed that website and contact form disclaimers could add more certainty by disclaiming any implied relationship, and therefore, limit liability. Since this situation has never been tested in court (as far as I know), we don’t really know what would happen. But did add a disclaimer to our website contact form.

Please share your thoughts

How do you walk the fine line between friendship and an attorney-client relationship? Is there a specific point in a conversation where you determine that an attorney-client relationship could be established? What do you think about email and website disclaimers? Please share your thoughts and experiences, and I’ll update this article as needed.

Douglas Chandler

Join Chandler & Moore Law’s LinkedIn group: Attorney Ethics and Professional Liability.

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