![]() The Declination Letter. When an attorney turns down a representation, or the potential client decides not to hire the attorney, the attorney should send a letter confirming that the attorney has not accepted any responsibility for the matter. While such a letter probably will not be shared with non-clients, it provides contemporaneous documentation of who the lawyer intended and understood his or her client to be.Ģ. In the case of the entity representation, Rule 1.13(f) of the Model Rules of Professional Conduct requires the attorney to make clear that he or she represents the organization rather than its agents or employees, when their interests diverge. The Engagement Letter. This document, delivered at the outset of the relationship, should define who the attorney represents, and, when necessary, who the attorney does not represent. There are several measures an attorney can and should take to prevent unintended attorney-client relationships. Jurors are often incensed by attorneys who act with a conflict of interest, and in some cases, have significantly inflated damage awards due to their outrage. Defending such matters can be particularly difficult, because if the jury finds an attorney-client relationship, the attorney then, by definition, was acting with a conflict of interest-by preferring the interests of one client over another. Likewise, unintended attorney-client relationships can arise when there is a lack of clarity concerning whether the attorney represents an entity or its managers or constituents.Īny doubt concerning the existence of an attorney-client relationship will likely be resolved in favor of the putative client. Other risk factors include circumstances where a non-client will derive benefits from the contemplated transaction, such as working-interest owners or joint-venture partners. The other party may believe he or she does not need counsel because his or her interests are similarly aligned. The risk of developing an unintended attorney-client relationship occurs most frequently in transactional matters, where one party has counsel and the other does not. ![]() Such situations are rife with legal-malpractice exposure. In those circumstances, the attorney often is not representing the interests of that party, and very well may be taking actions that are contrary tothat party’s interests. Therefore, when an attorney deals with a non-represented party, an attorney-client relationship can arise without the attorney’s knowledge, intent, or consent. However, an attorney-client relationship may be inferred or implied from the “totality of the circumstances,” including a course of conduct, communications between the parties, and a putative client’s reasonable expectations. Traditionally, the attorney-client relationship requires an express agreement between the attorney and client.
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