Who’s Your Client? No, Really, Who is It?
October 26, 2020
Do you know who your client is? Do you know who your client is not? Identification of the client is the foundation for the attorney-client relationship. It drives all ethical considerations beginning with the question of to whom your duties of loyalty and confidentiality flow.
Absent clear discussion and an express writing, the answer of who should be or is the client is not always straightforward and not always well understood by all involved. Failing to remain vigilant in establishing a mutual understanding and acting accordingly risks entangling the lawyer in future disputes, ethics complaints, and malpractice claims.
Your Conduct and Words Can Create an Attorney-Client Relationship
An implied attorney-client relationship can form, even in the absence of a writing, when a person seeks and a lawyer gives legal advice concerning the legal consequences of the person’s past or contemplated action. There is a subjective component to this. While a would-be client’s subjective state of mind by itself might not create an attorney-client relationship, if an attorney leads the would-be client to reasonably believe that there is an attorney-client relationship, then the client’s belief as to the existence of an attorney-client relationship comes into play. Cue the old saw about legal advice sought and given informally at a party. And remember, even when a prospective client does not hire you, you still owe duties to that person. (See Colo. RPC 1.18.)
Identifying the Client Isn’t Always Straightforward
It may be clear to you as the lawyer who is and who is not the client, but never assume it is clear to the people you are working with. Here are just a few examples and hypotheticals where careful discussion and advisements are warranted:
- When a third-party pays your client’s legal fees. This by itself does not create an attorney-client relationship with the payor, but do the payor and the client know that? Consult Colo. RPC 1.7 cmt. 13, and Colo. RPC 1.8(f) and cmts. 11 and 12.
- When the client is a business. Do the individuals involved in the business understand that they are not your clients by virtue of your representation of the business? Consult Colo. RPC 1.13 and its comments.
- When the estate and business planning client has family members interested and involved in the family business. Consider the elderly client who has multiple adult children sitting in on meetings with the lawyer over many years. Are they beneficiaries of the estate plan? Do they understand who you don’t represent? Consult Colo. RPC 1.6 and 1.7.
- When a person in need of legal services wants a relative or friend to help with the consumption of legal services. This could be an elderly widow designated as the personal representative of her spouse’s estate, a divorce client wanting the help of family members to work with you, or a person who may have some degree of limited capacity. Have you discussed with them who is or should be the client, and the role of the third party in the representation? Have you considered the client’s capacity and its effect on the attorney-client relationship? Consult Colo. RPC 1.6, 1.7, and 1.14.
- When you represent an individual in her representative and fiduciary capacity on behalf of another as opposed to her individual capacity (e.g., conservator, parent as next friend, or trustee). Does she understand the difference and her fiduciary responsibility?
What to Do
At the start of every legal representation, and at regular intervals when appropriate, have a clear discussion with all individuals involved as to who is and is not the client and the ramifications that flow from the distinction. Obtain all necessary informed consents and put key advisements in writing, for example, in your legal representation agreement.
Make sure that all individuals involved understand the parameters of the relationships and the boundaries based on those relationships.
Finally, when you encounter a sticky question that implicates ethics and professional responsibility, don’t go it alone. Consult with your ethics counsel, contact the CBA Ethics Committee Hotline, or check with your professional liability insurance carrier, which may have its own hotline available to you. Also, take a look at Lawyers’ Professional Liability in Colorado (CBA-CLE 2018) for more in depth treatment on the issue.