In a recent episode of “Hart of Dixie,” local attorney George Tucker notices his former finance Lemon Breeland sitting at a table looking perplexed and proceeds to have the following conversation with her:
“George, great, can I talk to you for a minute? In confidence. Attorney-client privilege.”
“Yes, but technically I can’t be your attorney unless I collect fees.”
She hands him a hot dog.
“Attorney-client privilege it is. What’s up?”
Then the two proceed to discuss something or other that you can read about here if you’d like. (Or you could watch the episode yourself. Or you could not watch it and save yourself 42 minutes.)
Is George Tucker correct? Must fees exchange hands to form an attorney-client relationship? If so, is a hot dog enough to form that relationship?
The attorney-client privilege protects the communication between an attorney and his or her clients. It basically prevents the attorney from having to testify in court about information clients tell their attorneys.
For the privilege to attach, the person must have been a client, or sought to become a client and made communications to an attorney–or someone they had reason to believe was an attorney–for the purpose of seeking legal advice.
Like everything else, there are some exceptions to the privilege. Those exceptions include making the communication in the presence of a third-party; for the purpose of committing a crime or tort; or if the client waives the privilege.
It also only protects words between the two, not evidence or the attorney’s observations in some cases.
Closely related to the privilege is the attorney’s duty of confidently to his client.
Idaho Rules of Professional Conduct rule 1.6 covers this duty, which prohibits a lawyer from revealing information relating to the representation of a client unless the client consents or the lawyer acts to prevent a client from committing a crime, or to defend himself in a lawsuit between the client and himself. The rule basically expands the privilege to everyone else.
(Fun fact: The rules state a lawyer may reveal such information to prevent a crime, but is not required to do so. However, a different rule prohibits an attorney from aiding the commission of a crime.)
When dealing with both the attorney-client privilege and the duty of confidentiality, the key questions are if there is an attorney-client relationship and at what point, if any, does it start?
The preamble of the Idaho Rules of Professional Conduct has this to say about when it forms:
Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
The rule clears it up, just as clear as any rule of law clears up any matter.
In an American Bar Association essay, Evan L. Loeffler writes:
It is the lawyer’s responsibility to be clear about whether representation has commenced. A layperson may be able to incorrectly give legal advice, but a lawyer has a higher degree of responsibility as a professional. As a lawyer, it is critical not only to understand when the attorney-client relationship commences, but to delineate clearly when this occurs—and when it does not—to the potential client.
Many lawyers take the position that the attorney-client relationship commences only after the attorney agrees to representation. Others say it only occurs after a client interview takes place, a fee agreement is signed, and a retainer or fee deposit check has cleared the bank. Unfortunately, it’s more complex than that.
The relationship begins when there is a mutual understanding that the client is going to confide in the attorney and the attorney is going to listen. The attorney-client relationship may commence even if there is nothing in writing. The relationship may commence even if no money has changed hands. Although there must be a mutual understanding that the client has engaged the lawyer and the lawyer has accepted representation, it is the attorney’s responsibility to make it clear to the potential client when this has occurred, and when it has not.
What it comes down to is it reasonable for the client to believe that an attorney-client relationship exist?
Changing money is the easiest way to ensure both parties understand the relationship exists. Abraham Lincoln said it best, “The lawyer should always get some part of his fee in advance from the client. In this way the client knows he has a lawyer and the lawyer knows he has a client.”
So, why the exchange of a fee makes clear that a relationship is formed, the changing of money is not necessary for the relationship to form. George Tucker’s assertion is wrong, but he’s also the same guy that refers to the LSAT as “the LSATs” later in the same episode. (I’m just happy Jason Street learned to walk again, who cares if he actually knows the law or not.)
It’s easy to know when the relationship is formed when someone comes into an office, talks with an attorney for a half hour, signs a representation agreement, and writes a check. It’s harder when those things do not occur.
For that reason, many of the things I do in my office are designed to define that line and to keep me clearly on one side of it.
1. Every prospective client I meet with signs a document before they leave my office. That document clearly states “I am” or “I am not” represented by Taylor Law & Mediation at this time. This goes a long way in clearing up any confusion before it can start.
2. I never accept any documents from people who I am not currently representing. People come in, show me tons of documents, pay my consultation fee, and then say they need time to decide what to do or that they wish to talk to other attorneys before making any decisions. It’d be very easy for someone to say, “I visited with him in his office, I wrote him a check, I left all my documents with him, I thought he was my attorney.” Suppose that person never comes back and their claim runs the statute of limitations and they can’t do anything about their claim. I could potentially be on the hook for malpractice in that scenario.
3. I avoid giving advice over the phone. Sometimes people call on the phone and explain their situation and ask what I think they should do. I think those people should come in my office and give me money before I answer that question. That’s because I could be on the hook for any actions they might take as a result of how I answer that question. If I’m going to be on the hook for the advice I give, I want to make sure I fully understand the situation before giving that advice.
Practicing law is very fact specific. One fact can literally change the entire case and its outcome. Most people don’t know what that fact is or they choose not to share it for whatever reason. I’ve met with people in my office for 45 minutes before and thought I had all the pieces to move forward and then they say, “Oh, I forgot to tell you something,” and then I have to say forget everything I just told you and let’s start over. The chances of people giving me that piece of information is slim, so I don’t have those conversations over the phone.
It’s true that I’d also like to be paid for any advice I give, but more importantly, I don’t want to be sued for free advice I give over the phone later on when I’ve long forgotten our conversation. Even if I am able to understand the entirety of the situation, it’s possible that the person I’m talking to won’t understand what I tell them to do or do it correctly. If I’m going to be on the hook for my legal advice, I’d also like to be the one executing my plan so no one else is to blame if mistakes are made.
4. I avoid giving advice to people in person who aren’t my clients. When people know you’re a lawyer, they want to ask you for your advice or to do something for them, often at no cost. There are people in this world that I would give free legal advice to or take other action on their behalf, but I tell them all the same thing: come to my office and we’ll talk. This doesn’t mean I’m going to send them a bill, though it would be fair for them to expect one, but it does mean that I get to give the free advice on my terms. I get to sit down with them and talk about nothing else for 20-30 minutes, which lets me get a clear understanding of their situation. I also get to keep asking questions if I need more information or think things are being hid from me. In addition, the quality of information they receive in this setting is going to be far superior to anything I would be able to tell them standing in line at a grocery store, over a text message or via Facebook.
5. I send people letters. Every person who chooses to hire me gets a letter from me outlining our fee agreement and the scope of my employment. It’s clear to them that they have hired me and exactly what it is they have hired me to do for them. Everyone who comes into my office and chooses not to hire me also gets a letter making it clear that I am not their attorney at that point in time.
Finally, Lemon pays George with a hot dog. Idaho Rule of Professional Conduct 1.5 requires fees to be reasonable. A hot dog is probably a reasonable fee for a few minutes of advice.
The best part about the rule is that fees aren’t required to be strictly money. Attorneys may accept property in exchange for legal services.
I think it would be awesome to accept wild game meat in exchange for legal services some day.