A lawyer acts as an agent for her client. Therefore, when the lawyer acts on behalf of the client, the client is bound by the lawyer's decisions, actions, or omissions. As such, it is important that there is a clear understanding between the lawyer and the client regarding what decisions are reserved for the client, and in which areas the lawyer has the discretion to act on the client's behalf. California courts have held that an attorney-client relationship can only be created by contract, xii However, the formation of an attorney-client relationship does not require an express contract; such a relationship can be formed implicitly, as evidenced by the intention and conduct of the parties, xiii While the lawyer and the alleged client may have their own subjective opinions as to whether or not an attorney-client relationship has been formed and with which client (s), courts will generally apply objective evidence.
Thus, despite the subjective opinion of counsel to the contrary, the reasonable perception of the alleged client may determine that the person is a client of the lawyer, xiv. Usually, an attorney-client relationship doesn't form until the lawyer and client agree. But the attorney-client privilege protects some communications made before the prospective client hires the lawyer, and even some where the lawyer is never hired. By its very nature, the attorney-client relationship offers a distinct and invaluable right to protect communications from forced disclosure to any third party, including business partners and competitors, government agencies, and even criminal justice authorities.
It is important to understand the importance of this type of situation, because when there is an attorney-client relationship, you have a responsibility to your “client”. The imputation of an attorney-client relationship also applies with respect to certain other prohibitions under the Rules. There are many aspects of the attorney-client relationship that are governed by professional liability rules. If that person followed your advice and ultimately decides to rely on you for future legal advice and guidance, you may have an attorney-client relationship without even realizing it.
Because an attorney-client relationship can develop quickly and without a signature on a contract, it is essential that you be alert at all times. Courts will tend not to involve an attorney-client relationship in which the lawyer would have a potential or actual conflict of interest if considered to represent the putative client. An attorney-client relationship may also be expressly recognized by the lawyer's “appearance” on behalf of the client, including filing pleadings in court for the client, drafting documents on behalf of the client, or appearing in court as a representative of a litigant. It's important to remember that having a conversation with another person about a legal matter can lead to the development of an unwanted attorney-client relationship.
While this list of factors is illustrative, none of these factors alone will affirmatively establish the existence of an attorney-client relationship. An implied attorney-client relationship can be created even if the client has never signed a fee agreement. And, even if an attorney-client relationship has been established, it may not be entirely clear who the client is. In most cases, determining that the attorney-client relationship exists is not a laborious task, since most of the time, the lawyer has expressly acknowledged the client's representation.
As elementary as this concept may seem, many clients assume that the relationship exists and mistakenly rely on the protection of privilege, but privilege does not exist until the relationship is firmly established. Xiii While the lawyer and the alleged client may have their own subjective opinions as to whether or not an attorney-client relationship has been formed and with which client (s), courts will generally apply objective evidence. . .
