Opinion #61. Establishment of Attorney-Client Relationship

Issued by the Professional Ethics Commission

Date Issued: September 4, 1985

Facts

Pursuant to Bar Rule 11(c)(1), Bar Counsel has asked for an advisory opinion on the following fact situation:

Client (C) contacted an attorney (X), for the purpose of determining if C had a cause of action against a local business. X had received background information concerning this matter three days prior to the meeting with C. At the consultation, X and C reviewed C’s possible claim for a breach of warranty and wrongful withholding of pay for services rendered.

At the conclusion of this single interview, X requested C to provide X with additional information to document certain aspects of his claims. X indicated to C that after X had received this information X would be in a better position to determine whether or not X would pursue C’s claims. No fee arrangement was discussed at this initial meeting.

Approximately six months transpired, with no subsequent response from C. Accordingly, X closed his file on this matter, assuming that C had decided not to pursue this particular matter. X did not specifically inquire of C as to the correctness of this assumption, but assumed from C’s silence that X’s services were no longer needed.

Approximately one month after X closed his file, C corresponded with X, supplying the additional information that X had initially requested, and apologizing for failing to provide it earlier. This subsequent correspondence from C indicated that C believed X to be representing C’s interests in this matter, i.e., C requested that X initiate a suit upon C’s behalf. X then placed this subsequent material with C’s file, but did not take any immediate action on this matter.

Sometime later C determined that X apparently was not going to pursue his interests. C then requested all of the contents of his file be returned to him. X failed to do so for a six‑month period.

Question

For purposes of Me. Bar R. 3.6(a)(3) and 3.6(f)(2)(iv), had an attorney‑client relationship been established between X and C? Opinion

It is first important to observe that the issue presented here could be resolved by resort to ordinary contract law.[1] Whether there existed a professional attorney‑client relationship should, in the first instance, be governed by the usual principles of contract law. In the facts of this case, however, there is some doubt as to whether there was a sufficient meeting of the minds to create a contract in the ordinary sense. For purposes of our analysis, therefore, we assume that there was, in fact, no meeting of the minds and thus no "contract.”

Nonetheless, even if no contract may be found to exist as a matter of law, a question still remains as to whether a lawyer‑client relationship has been created for ethical purposes. In answering that question, we are less concerned with traditional contract law considerations and more concerned about determining the point at which a relationship has been established sufficient to trigger the various ethical obligations incumbent on an attorney under the Maine Bar Rules. While reference to contract law principles is instructive, such principles are not dispositive of the ethical questions before us.

For the reasons set forth below, we conclude that under facts such as those set forth above, a lawyer‑client relationship was established at the time when C provided the requested information to X. First, although the Bar Rules do not define the term “client” we discern from the Rules a general intent to use that term in a broad sense. The Bar Rules establish standards of professional conduct that apply not only between attorneys and their “clients,” in a contractual sense, but also between attorneys and the public generally. Thus Rule 2(a) states that the purpose of the rules is to provide appropriate professional standards for attorneys in their relationships with their clients and “the general public.” Consistent with that general statement, the specific standards in Rule 3 impose duties with respects to “prospective clients” (Rule 3.4(a)), persons other than clients (e.g., Rules 3.6(c), 3.6(m) and 3.7(b)) and “former clients” (Rule 3.4 (e)). We conclude that as a matter of policy the Rules are intended to apply to professional relationships even when no contractual arrangement has been established between the parties.

Second, the weight of authority holds that the ethical duties arising out of an attorney‑client relationship apply even if no employment ever occurs. Nolan v. Foremen, 665 F.2d 738, rehearing denied, 617 F.2d 1380 (5th Cir. 1982); Westinghouse Electric v. Kerr‑McGee Corp., 508 F.2d 1311 (7th Cir.), cert. denied, 439 U.S. 955 (1978). The Massachusetts Supreme Judicial Court has held that:

The attorney‑client privilege may extend to preliminary communications looking toward representation even if no representation is ever undertaken.

Commonwealth v. O’Brien, 377 Mass. 772, 388 N.E.2d 658 (Mass. 1979). In two separate opinions the Massachusetts Bar Association Committee on Professional Ethics has concluded that disclosure of confidential facts and documents by a person to a lawyer during a “threshold interview” creates an attorney‑client relationship barring unauthorized disclosure of confidential information by the attorney to third parties. Mass. Committee of Prof. Ethics, Opinions 81‑1 and 76‑6. Consistent with these authorities, the Maine Grievance Commission held in Opinion #8 (April 2, 1980) that a prospective client who consults with a lawyer, discloses confidential information to the lawyer and preliminarily discusses legal issues, is a “client” for purposes of Rule 3.6(l) even though the lawyer later declines formal employment and terminates the relationship.

Applying the foregoing principles to this case, we are of the opinion that an attorney‑client relationship had been established under Rules 3.6(a)(3) and 3.6(f)(2)(iv). Even if the parties had not reached a meeting of the minds in a contractual sense as to whether a professional relationship existed and the terms of the relationship, the nature of their communication was sufficient to establish an expectation in the mind of a reasonable person that the attorney had undertaken to advise him. The authorities cited above generally agree that in major part the existence or non‑existence of the professional relationship is dependent upon the understanding and expectation of the putative client. We think that C would have been fully justified in expecting in this case that any communications he made to the lawyer, including those at the initial conference, would be held in confidence. Consistent with that conclusion, we think the putative client would also have been justified in concluding that, at the point he supplied the additional documents requested by the attorney pursuant to the original consultation, at least a limited attorney‑client relationship was established. Those documents were provided as a follow up to an initial conference at which the lawyer led the potential client to believe that he would review documents and give legal advice to him. Those events are sufficient in our judgment to establish an attorney‑client relationship at least for purposes of 3.6(a)(3) (neglect) and 3.6(f)(2)(iv) (prompt return of client’s property)[2].


Footnotes

[1] It must be emphasized that this opinion is intended solely as guidance for interpretation of the Maine Bar Rules and is not intended to constitute an expression of opinion regarding the legal obligation or liability of attorneys under contract, tort or other substantive law.

[2] It should be understood, however, that in finding that a professional relationship existed under these facts, we do not express any opinion as to whether attorney X breached any ethical duty under the cited rules. All we conclude is that the professional obligations established by the Rules applied to the attorney’s relationship with C.


Enduring Ethics Opinion

Enduring Ethics Opinion #85 [June 2015]