there is a dispute between a lawyer (“L”) and a person (human or entity) (“P”), as to
whether P is (a/the) Client (“C”) with respect to L, the burden of proof is generally taken to be
upon P, although at least some burdens of proof shift as between L and an
actual C. (Of course, it is obvious that not all Ps are Cs, even if the P believes he is a C.) There is a range of
considerations that courts review and from which they draw inferences. Almost none of them are a necessary (i.e.,
required) condition for a client-attorney relationship. Some of them may be sufficient conditions,
but they are not at the same time necessary conditions.
is a list of a number of propositions (“Prop.-___”) which courts invoke, list,
consider, and from which they draw inferences.
Some of the elements of the list are followed by a commentary:
thinks of C as his client.
is neither a necessary nor a sufficient condition, although it is sometimes
correlated with the existence of an attorney-client relationship. Lawyers usually know who at least their
principal clients are. Obviously, under
some circumstances C can be L’s client, and L not realize it, or be mistaken
about it, or just never think about it.
On the other hand, L could regard C as his client and be mistaken.
represent him, and L has stated that he will do so.
Prop.-2 can obtain without L having started to represent C actively. Moreover, C can become L’s client without
making an explicit request.
Representation can exist as a result of interactive conduct without
explicit communication with respect to clienthood.
states to C that L represents C.
not automatically imply C’s consent.
says to L that L represents him as a client.
itself, silence does not imply consent—in this case that of L. (At the same time, it would be a good
idea—from a pragmatic standpoint—for L to speak up if he is not going to
discusses the individual legal interests of C with C.
create the existence of a client-attorney relationship. L could listen to C, ask some questions, and
then say something like I can’t become your lawyer because there is a conflict,
because I don’t understand the issues, because I don’t like you, or because I
have fallen deeply in love with you.
interests with C and provides C with substantive advice thereon, i.e., relevant
or related advice.
is a sufficient condition of a client-lawyer relationship, if any of these
items are. That would be even truer if L
provides C not only with advice, but with legal services and some sort of
product. Consider the following:
interests with C and then provides C not only with advice but with a legal
product of some sort.
probably close to a sufficient condition of the creation of an attorney-client
relationship, even if L is not paid.
It’s only close, however. What if
C did not want the “legal product,” did not use it, or did not even look at it.
or someone else pays L to provide C with legal services.
neither a necessary nor a sufficient condition for the creation of an
attorney-client relationship. L might
give the money back forthwith. She
didn’t want ever to work for C, or anyone like C. Also, if L sends C a bill for a retainer
which L says she must receive before she will perform any services, then there
is no client-attorney relationship yet.
If, on the other hand, L sends a bill to C for services already
performed, the sending of the bill would not create the relationship, the
relationship would already exist.
is the subordinate of C1, but C2 also makes specific use
of L in a personal matter, then there is an attorney-client relationship
between C2 and L.
does not describe either a necessary or a sufficient condition for an L-C
relationship. Asking for representation
does not create it. C2
doesn’t have to ask for representation in order for it to come into
existence. How C2 used L may
be important. Reciprocal behavior
may be sufficient. Thus, if C2
involves L because he has a fiery reputation, no client-attorney (“C-L”)
relationship will thereby be formed.
C’s legal affairs but has another lawyer who represents her. Indeed, she has an attorney providing
is neither a necessary nor a sufficient condition for L not being C’s
lawyer. C may want two lawyers. She may not like her other one. She may not trust the other one. She may think the other one is stupid. For a variety of reasons, C may want L as a
lawyer over and above some other lawyer.
legal problems, L helps C, and C has no other lawyer.
a sufficient condition for the creation of a C-L relationship between C and
L. C can have one or more lawyers and
hire another one with respect to exactly the same task.
significant matter with P2 and recognizes that the propositions
being asserted by L are important to his individual and separable legal
interests. P1 thereafter
relies upon what L stated to P2.
not create a client-lawyer relationship between P1 and L,
irrespective of whether there was a client-lawyer relationship between L and P2. Whether a C-L relationship was formed between
L and P1 would depend upon a variety of factors, for example, what L
took (assumed, understood, or inferred) P1 to be doing, as it were,
as P1 listened to the conversation that was going on between L and P2. P2’s intents and beliefs would
perhaps also be relevant.
and L is negotiating for P2, where there is a negotiable deal going
on between P1 and P2, then L is not P1’s
lawyer with respect to the transaction.
is false. L may or may not be the lawyer
for both P1 and P2.
That would depend upon the facts.
In all probability, however, in the foregoing item, if these are the
only facts that are (or to be) known, L is probably not the lawyer for P1. This is especially true if L has not
performed any other services for P1 related to the transaction.
states to C that she is not C’s lawyer.
is not a sufficient condition of L’s not being C’s lawyer. L could be wrong. L could be lying. L could fail to understand precisely who C is
and has been in his practice, and so forth.
(These points apply to a past tense variation of Prop.-14.)
L states to P1 that she represents C2,
who or which is connected to P1 in a transaction or relationship.
a sufficient condition for the non-existence of an attorney-client relationship
between L and P1. L might
wish it were true, but it would not always actually be true. Sometimes in situations described by Prop.-15
P1 is C1. L might
represent C1 by providing C2 with legal services, such as
advice, information, suggestions, writings, and so forth, but wish to believe
that they were presented only to C2, when—in fact—C2
handed them on to C1, while indicating to L that something of the
sort, is, might, or will happen. L could
even agree with C2 that there would, at C2’s request, be
two clients, one of whose identity would remain secret from L. Of course, these are high risk situations, at
least sometimes, and many lawyers will refuse them, if they see them.
states to P1 that she represents C2 and not P1.
is not a sufficient condition for the non-existence of an attorney-client
relationship between L and P1.
If L provides P1 with legal services, then the fact that L
has said that she does not represent P1 as C1 simply
becomes a false proposition not a determinative one.
pays L to do work for P2/C2, which L does.
P1 as C1? The
answer is—based on these facts alone—No. This pattern is very common in liability
insurance, duty-to-defend situations.
pays L to do work for C2 but P1 directs in handling C2’s
consequently represent P1 as C1? Same answer applies: No.
but P1 directed in handling C2’s affairs, and P1
seek legal advice from L regarding its own interests (having to do with
anything including C2), and L provides that advice to P1.
represent P1 as C1?
there are two lawyers and two clients.
asserts to C1 that L1 represents C1 and
that L2 does not.
representation by L1 does not entail, imply, or even suggest that L2
does not represent. This point
would be true whether or not L1
did in fact represent C1. Whether L1 and L2 both
represent C1 would depend upon the circumstances, the facts, who
provided advice, and who provided services.
The status of one of the lawyers would not depend upon what the other
and L2 have a conversation with C2. L2, after the conversation, tells C1
that L2 represents C1, and that L1 does
not, but represents C1.
this representation by L2 to C2 entail that L1
does not represent C2? The
answer, of course, is No. This would be true if C1 and C2
were doing a deal together, and arrangements evolved over time. One could easily imagine that L2 saw the relationship as much
more adversarial—or, at least done at arms length—than it actually was. L2 might consider himself an
entirely independent counsel, whereas, in fact, he was hired to help L1,
because of differentials in jurisdiction, differentials in the kind of law
involved, such as patent law, and so forth.
Numerous variations like this are possible, and—indeed—quite frequent in
the real world. The following often
arises in a variety of different circumstances:
C1, a corporation. L is
good friends with C2, a senior management official of the
corporation. C2, runs into
some sort of trouble. L says to C2,
“I am not your lawyer, you must understand this, I represent the corporation
and only the corporation,” and then provides C2 with various legal
advice and legal services, e.g., she discusses the background history and facts
of the problem with C2, reviews
letters from counsel for the accuser, criticizes them, makes suggestions to C2
about how to handle his problems, and so forth.
circumstances, does L represent C2?
The answer is almost certainly Yes. It is immaterial that L’s statements are
inconsistent with her behavior. Behavior
trumps explicit statement, when there is inconsistence. In this area of life, I cannot think of a
situation in which that would not be true.
represent you,” and L never writes to C and says, ”I represent you,”
although L has said and/or written to C and said I represent somebody who is in
this deal with you.
treats C thereafter and no matter whether L does lawyerly things for C, L is not C’s attorney, so long as the oral
and/or written statements are not withdrawn.
Answer: False. Again: Lawyer
conduct trumps lawyer silence, partial statements, and even statements. (Given
the way depositions have gone, the opposite of this conclusion could be
entitled the “Chenowithian Doctrine.”)
foregoing observations are valid with respect to custom and practice in the
legal profession, in most cases. In
summary, if a person desires a court to conclude that he is the client of a
lawyer, the burden of proof is on the person who submits that he is a client,
and in general, he must show that he has received some sort of legal services
from the lawyer which are neither trivial, instantaneous, entirely obvious to
everyone (including him) or frivolous, and the evidence that he presents must
be a type which would convince a rational and objective knowledgeable person
that the lawyer in question has provided some sort of legal information,
advice, suggestions, products, or services to the person claiming that he is a
client. Some formalities make this proof
easier: written agreements, events involving explicit oral agreements, the
non-existence of conflicts, etc.
However, those are not necessary conditions of the existence of an
attorney-client relationship, as everyone knows. Many of the foregoing propositions pertaining
to C-L or L-C relationships are invoked, usually together with others, in legal
reasoning about whether such relationships exist. All or most of them have been invoked in this
case in an attempt to vindicate the view that no such relationship existed
between H & D and 4CC. To be clear
that these arguments are unsuccessful, I now turn to more specific discussions
of the facts of this case alone.