Tuesday, April 17, 2018

When does an attorney-client relationship exist?

This issue has popped up in my social media feeds a lot over the past day or so. Apparently, it has something to do with President Trump, a porn star, the president's attorney, and Sean Hannity . . . I'm a little behind on, well, everything, but I can provide some info on the law in Pennsylvania.

First, even if no attorney-client relationship exists, attorneys also owe some duties to prospective clients (See, Rule 1.18). An official comment to the rule explains:
Sean Hannity by Gage Skidmore
A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.  . . . . In contrast, a consultation does not occur if a person provides information to a lawyer, such as in an unsolicited e-mail or other communication, in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer without any reasonable expectation that a client-lawyer relationship will be established, and is thus not a ‘‘prospective client.’’
But what about an actual attorney-client relationship? Obviously, an attorney and client can enter into an express representation agreement. However, there can also be an implied attorney-client relationship. The Pennsylvania Superior Court has held:
Absent an express contract, an implied attorney/client relationship will be found if 
1) the purported client sought advice or assistance from the attorney; 
2) the advice sought was within the attorney's professional competence; 
3) the attorney expressly or impliedly agreed to render such assistance; and 
4) it is reasonable for the putative client to believe the attorney was representing him. 
Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super. Ct. 1993) (citing Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1999)).

In Atkinson, the Court concluded that no implied attorney-client relationship occurred, noting that no fee arrangement was entered into; no retainer or fees were paid; and there was no discussion of the legal implications of the issue at hand.

That's more complicated than you hoped, isn't it?