The Accidental Client
Accidental clients have always been a problem for lawyers. These are the people who ask you a question about a claim they might have or a transaction they are navigating. Often, they are just looking for some free legal advice. At other times, they may be seriously considering the idea of retaining you to represent them in the matter. In all accidental client cases, though, there is never a formal understanding or written agreement that you are going to represent them. Is there an attorney-client relationship in these situations? The answer to that question is not always black and white. It depends on the facts and the statements exchanged between the lawyer and the purported client.
Historically, lawyers only had to worry about these situations when they were confronted by a social acquaintance at a cocktail party or by a neighbor or fellow church member. Today, the concern extends to social media communications. Most lawyers have some presence on social media. Many law firms use social media to market their services. This can sometimes result in exchanges between a lawyer and a prospective client that are construed by the prospective client as forming an attorney-client relationship. Again, whether such a relationship exists depends on the facts and the communications that are exchanged.
North Carolina courts have made it clear that a finding of an attorney-client relationship does not depend on the payment of a fee or execution of a formal contract. In The North Carolina State Bar v. Sheffield, 73 N.C. App. 349, 358, 326 S.E.2d 320, 325, cert. denied, 314 N.C. 117, 332 S.E.2d 482, cert. denied, 474 U.S. 981, 106 S.Ct. 385, 88 L. Ed. 2d 338 (1985), the court explained that the determination of whether an attorney-client relationship exists depends on whether the purported client could reasonably infer such a relationship from the lawyer’s conduct and statements. Note that it does not matter whether the attorney intended to form an attorney-client relationship. If the prospective client could reasonably infer such a relationship, then it exists.
So, whether you are chatting with someone at a cocktail party or exchanging messages on social media with a person who is seeking your assistance, you must be clear with that person that such communications are not intended to form an attorney-client relationship. In the case of social media sites, you should have a disclaimer on your website that makes clear that communications on the site are not intended to create an attorney-client relationship and should not be construed as such. However, be careful not to post such a disclaimer and then proceed to give very specific legal advice to another person on the site. This could create confusion and might still result in a finding of a formal relationship.
Here is an example of a disclaimer that you might post on your social media site:
Nothing on this is intended to constitute legal advice and should not be relied upon as such. Viewing this site does not form an attorney/client relationship between you and this firm. All visitors should consult with an attorney regarding their individual legal questions, needs, or concerns. We are not responsible for any action taken in reliance upon any information on this site. The content on this site is for general informational and educational purposes only. You may become my client only upon the execution of a written engagement agreement.
The easiest way to make sure that you don’t form an inadvertent attorney-client relationship with another person is to send a nonengagement email or letter to the person. This does not need to be formal or overly detailed. It can simply confirm that the person spoke with you about a particular matter and has not retained you. If you do not wish to handle the matter, you should make that clear and encourage the person to seek other counsel. If you are interested in handling the matter, you should state that you will only become the person’s lawyer upon execution of a written engagement agreement.
Every year, we get numerous claims where a person claims that our insured agreed to represent them, and the lawyer vehemently disagrees with that understanding. It is extremely rare that we have a nonengagement email or letter in these claims. It becomes a fact issue as to whether there was an attorney-client relationship. A simple email could have avoided a claim in every one of these situations.
So, the next time you have a conversation with someone about their legal issue(s), consider sending them a follow-up email confirming that you have not been hired. It will save you your deductible and the stress of defending a legal malpractice claim or grievance.
