The courts have made a distinction between a solicitor-client relationship and a solicitor-client retainer. The relationship is established when the prospective client has his or her first consultation with the lawyer or law firm about retaining services. The relationship is often established without formality.
The retainer is established once the lawyer agrees (expressly or implied by the lawyer’s conduct) to provide legal services. Until it is made clear by way of a non-engagement letter to the prospective client, it may be that a solicitor-client relationship, with all of its important duties, truly does exist.
Case Study in Point
Eight months ago Mr. Smith consulted with Lawyer Jones with respect to a personal injury matter. Lawyer Jones met with Mr. Smith for a half hour free consultation after which time he advised Mr. Smith about what he believed to be the answer to his motor vehicle accident issue. He made sure to tell Mr. Smith that he probably could find a more experienced lawyer as he had not practiced in this area of law for years. Nothing else was done by Lawyer Jones. Today he received a message left on his voice mail from Mr. Smith looking for his trial date. Lawyer Jones looks at his notes from eight months past and realizes that Mr. Smith’s motor vehicle accident itself was just over two years ago.
Question: What were Lawyer Jones’ obligations to Mr. Smith and what steps should he have taken to avoid any misunderstanding which may now have resulted in lawyer negligence?
Answer: While Mr. Smith may not have formally retained Lawyer Jones, a lawyer-client relationship may have been formed at that initial meeting. Such a relationship is often created without formality. Even where no formal relationship has been established, there are circumstances like this where the lawyer has legal and ethical responsibilities similar to those arising out of a lawyer-client relationship.
To avoid this misunderstanding, a non-engagement letter should have been sent. The LSUC suggests a non-engagement letter checklist which includes the following information: (i) Date of the interview; (ii) Reason for declining or non-engagement; (iii) Confirmation of not being retained; (iv) Reference to any applicable statute of limitation; (v) Recommending other legal representation; (vi) Avoid stating any legal opinion; (vii) Returning any property provided at initial meeting; and, (viii) Dealing with any conflict of interest issues.
Of course, a copy of the non-engagement letter should be maintained and your conflict system should be up-dated.