By Gallagher Sharp LLPAs an attorney who focuses on professional liability, I have repeatedly seen the unintended consequences that can result from lawyers failing to properly communicate and document a decision to decline representation of a prospective client. While there are numerous reasons a lawyer may choose to forego a particular representation, when doing so attorneys must take care to avoid ambiguity that can result in an implied attorney-client relationship and can lead to claims of legal malpractice, ethical violations, and/or disqualifying conflicts of interest in other matters.
An Attorney-Client Relationship can be Implied by the Circumstances
Under Ohio law, an attorney-client relationship “does not depend on an express contract but may be implied based on the conduct of the parties and the reasonable expectations of the putative client.” New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, ¶ 26. As the Supreme Court of Ohio has explained, “[t]he determination of whether an attorney-client relationship was created turns largely on the reasonable belief of the prospective client.” Cuyahoga Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, ¶ 10. Thus, an attorney’s failure to affirmatively negate a putative client’s reasonable expectation of representation can be sufficient to establish an attorney-client relationship, even absent formal retention or a written engagement letter. See New Destiny at ¶ 26.
The facts Ohio courts consider when determining the existence of an implied attorney-client relationship includes whether the attorney: (i) provided legal advice about the putative client’s legal rights or method for pursuing claims; (ii) invoked the individual’s trust and confidence; or (iii) received any form of payment. See Riley v. Clark, 4th Dist. Scioto No. 98CA2629, 1999 WL 1052504, *5 (Nov. 10, 1999).
While the analysis is fact-intensive, claims of an implied attorney-client relationship generally fall into one of two categories. The first is an alleged failure to provide representation—i.e., the putative client claims the attorney’s conduct gave them a reasonable belief that the attorney would pursue a claim or otherwise advance their interests, and the attorney is alleged to have “dropped the ball” by failing to do so. See Carnegie Cos. v. Summit Props., 183 Ohio App.3d 770, 2009-Ohio-4655 (9th Dist.). The second is an alleged failure to properly advise—e.g., the putative client claims to have not pursued a claim based on the attorney’s advice during a consultation that the claim lacked merit, only to be informed by a second attorney that the claim was meritorious but had since become time-barred. See Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980).
Moreover, absent written confirmation to the contrary, a putative client may also claim an express relationship was formed based on their conflicting recollection of the consultation. Such “he-said, she-said” disputes about whether an attorney agreed to represent a prospective client have repeatedly formed the basis of malpractice claims. See Komorowski v. John P. Hildebrand Co., L.P.A., 8th Dist. Cuyahoga No. 101500, 2015-Ohio-1295.
Avoiding Unintended Attorney-Client Relationships
To avoid allegations of implied relationships, attorneys should manage initial consultations carefully, and clearly communicate and document a non-engagement.
Some ways attorneys can avoid ambiguity and minimize the risks of an alleged implied relationship include the following.
- Limit the amount of information obtained during an initial consultation to that necessary for the attorney to run a conflict check and determine their interest in the matter.
- Avoid providing gratuitous legal advice about the merits or value of a case during the consultation;
- Ultimately leave no room for ambiguity on the issue of representation.
- Utilize clear and concise non-engagement letters. “A signed and properly worded non-engagement letter normally protects an attorney from a claim that an attorney-client relationship exists.” Richard v. Colucci, 7th Dist. Mahoning No. 03 MA 103, 2004-Ohio-1198, ¶ 25.
Have questions? Contact Shane Lawson.