Ethics: Does an attorney-client relationship exist?

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

The question of whether a person is or is not a client is crucial to the issue of what duties the lawyer owes to that person. Sometimes the status of the person as either a client or not a client in a given matter is obvious. Other times it is not so obvious. It is surprising how often lawyers are found liable to persons for malpractice when the lawyer never considered the plaintiff to be a client.

The attorney-client relationship is governed by principles of contract and agency law. The parties must consent to the formation of the relationship, but that consent can be bestowed either expressly or implicitly. As a general rule, for an attorney-client relationship to be formed, the client must manifest his authorization that the attorney act on his behalf, and the attorney must indicate his acceptance. In re Cordova, 96 CH 571, M.R. 16199 (Nov. 22, 1999).

When there is no explicit attorney-client relationship, such a relationship may be implied when the putative client believes that the attorney is representing him and the attorney acts as if he were representing the putative client. For certain limited purposes, an attorney-client relationship can be created at an initial interview between a prospective client and an attorney, even if the attorney does not ultimately represent the prospective client.

For example, in King v. King, 52 Ill. App. 3d 749, 367 N.E. 1358 (1977), a husband consulted with an attorney about his marital problems for less than one-half hour. During the conversation, he revealed information about his financial situation and his future plans. The husband did not retain the attorney and the attorney did not receive a fee. Two years later, the attorney represented the wife against the husband. Based on the husband’s consultation with the attorney, the court found that an attorney-client relationship had existed between them, at least for purposes of protecting confidences and secrets and for purposes of disqualification.

The court disqualified the attorney from representing the wife because of his previous consultation with the husband. Current Rule 1.9 of the Rules of Professional Conduct provides that a lawyer may not represent a client in a matter that is adverse to a prior client if the matter is the same or is substantially related to the matter in which the attorney had previously represented the prior client. In King, the court determined that an attorney-client relationship would be created by an initial consultation that did not result in representation, even if ”the attorney acquired no knowledge which could operate to the client’s disadvantage.”

The Illinois Appellate Court, in Herbes v. Graham, 180 Ill. App. 3d 692, 536 N.E.2d 164 (1989), explained:

”An attorney-client relationship need not be explicit or expressed and is not dependent on the amount of time the client spends with the attorney, the payment of fees or execution of a contract, the consent of the attorney, or the actual employment of the attorney. [citations omitted] Rather, the relationship can come into being during the initial contact between the layperson and the professional and appears to hinge on the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.”

In Herbes, an attorney met with representatives of Libertyville Township to discuss his possible representation of the township in acquisition and condemnation proceedings, but ultimately declined to represent the township.

One year later, the attorney represented landowners in a lawsuit for injunctive relief to restrain the township from exercising its powers under the open-space program and challenging its constitutionality. The township filed a motion to disqualify the plaintiffs’ attorney, arguing that it had disclosed confidential information to him regarding the open-space program during the meeting the previous year.

In affirming the circuit court’s order, the appellate court found that an attorney-client relationship was formed during the township’s initial meeting with the attorney. The court in Herbes also rejected the attorney’s argument that no confidential information was disclosed.

Relying on King, the court stated that there was ”a strong indication that the township hoped and intended to retain the attorney. It was likely that under these circumstances the township representatives spoke freely with him concerning all aspects of their proposed program and how they hoped to achieve it.”

One appellate court has held that once an attorney-client relationship is created, it is irrebuttably presumed that confidences were passed between them. Morris v. Margulis, 307 Ill. App. 3d 1024, 1037, 718 N.E.2d 709 (5th Dist. 1999) rev’d on other grounds, 197 Ill. 2d 28, 754 N.E.2d 314 (2001).

In order to avoid conflicts of interest, disqualification or malpractice claims, lawyers should carefully identify who is considered a client, enter that information in the firm’s conflicts database and identify clients in engagement and non-engagement letters.