The Implied Professional Relationship

8/7/2019 The Implied Professional Relationship

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INTRODUCTION

CONFLICTS OF INTEREST RULEThe attorney is precluded from representing clients

in certain situations without the informed consent ofall interested parties.

These preclusions may grow not only from theattorneys existing clients but also from persons

with whom the attorney does not shareprofessional responsibility.


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I. INITIAL CONSULTATION

II. CONFLICTS OF INTEREST ARISING OUTSIDE

THE ATTORNEY-CLIENT RELATIONSHIP

III. NONCLIENTS ASSERTING LEGAL

MALPRACTICE CLAIMS AGAINST

ATTORNEYS


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I. INITIAL CONSULTATION GIVING RISE TOPROFESSIONAL DUTIES OR OBLIGATIONS

Failing to check for conflicts of interest prior to the

initial interview may be a basis for the attorneysdisqualification from representing an existing client ifsuch clients interests are adverse to the prospectiveclients in the pending matter.

The attorney automatically assumes the duty of

confidentiality regarding the information gained inconfidence during the interview.


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I. INITIAL CONSULTATION GIVING RISE TOPROFESSIONAL DUTIES OR OBLIGATIONS

A. Duty of Confidentiality Covers Initial Consultation

The preliminary consultation between a prospectiveclient and an attorney is afforded all the protectionsand privileges of established attorney-clientcommunications even if actual employment does notresult.

The attorney cannot use the information obtained inthe initial interview to the detriment of the potentialclient in a later action without raising a conflict ofinterest.


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The moving party, and thus the party with the

burdens of production and persuasion, is almost

always the client.

The attorney is the least cost avoider ofconflicts of interest since he is in the best

position to avoid them at the least cost to society.

The preliminary consultation must be protected,

or else no person could safely consult anattorney for the first time.


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A. Duty of Confidentiality Covers Initial Consultation

B. Proof of Attorney Client Relationship

Courts have held that fiduciary relationship may

result because of the nature of the workperformed and the circumstances under which

confidential information is divulged.

Courts have interpreted the attorneys duties and

obligations to extend beyond mere agencyprinciples.


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Thus, the proof of attorney client relationship

corresponding to implied professional relationship

can be summarized in the following ways:

1.) whether or not the potential client provided theattorney with confidential information while seeking

professional assistance; or

2.) whether the potential client and the attorney

acted and communicated in such a way that areasonable lay person would believe that the

attorney-client relationship was established.


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II. CONFLICTS OF INTEREST ARISING OUTSIDETHE ATTORNEY CLIENT RELATIONSHIP

In Nichols v Village Voice, Inc., the defendant movedto disqualify the plaintiffs attorney since that attorneyrepresented a co-defendant of the moving defendantin a prior action. The court stated a formal attorney client relationship was not necessary:

It is clear that where an attorney receives confidential informationfrom a person who, under the circumstances, has a right tobelieve that the attorney, as an attorney, will respect suchconfidences, the law will enforce the obligation of confidenceirrespective of the absence of a formal attorney-client relationship.


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The courts will try to avoid even the possibility of impropriety

in regards to conflicts of interest. If one firm would have a

conflict of interest by representing one party, then all other

firms or attorneys that a court finds are too closely

associated with that firm may also be disqualified.

Even if the reason for the conflict, or apparent conflict, of

interest is not related to any present or prior attorney-client

relationship, the attorney may still be disqualified ifthe link

between his competing interests is too close.


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III. NONCLIENTS ASSERTING LEGAL MALPRACTICE

CLAIMS AGAINST ATTORNEYS

DERIVATIVE CLIENTS

The common test for a third party to successfully assert a

negligence action against an attorney is that the third party

must show that the primary purpose and intent of the

attorney-client relationship itself was to benefit or

influence a third party.

A legal malpractice action is appropriate as between the

attorney and one harmed by his breach of duty where

the attorney has reason to foresee the specific harm

which occurred.


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The courts employ a balancing test which examines:

a) The extent to which the transaction was intended to affect

the plaintiff;

b) The foreseeability of harm to the plaintiff;

c) The degree of certainty that the plaintiff suffered an injury;

d) The closeness of the connection between the defendants

conduct and the plaintiffs injury; and

e) The policy of preventing future harm.


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SUMMARY

The three areas discussed illustrate how and where courts haveextended client status to persons never formally represented by

the attorney. This status protects potential clients in theirdisclosures to the interviewing attorney as well as their reasonableexpectations of that attorneys intention to represent them.Persons related to the attorney by past activities yet notrepresented by the attorney may still achieve former clientprotections. Furthermore, persons who were never representedby the attorney in any matter may also sue as derivative clients ifthe purpose of the attorneys duties was for their benefit. All threeof these areas extend the conflict of interest rules as well as thelegal malpractice rules to cover these clients.

The Implied Professional Relationship

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