Introduction
An attorney-client relationship formed when a lawyer agrees to provide legal assistance someone seeking the lawyer’s services. The scope of the representation depends on the terms of the agreement. The lawyer may agree to undertake a specific matter for the client. In case the relationship terminates once the matter resolved. Alternatively, the lawyer may agree to represent someone for all matters of legal consequence. Which may arise, which creates an open-ended and ongoing attorney-client relationship.[1]
When the two parties agree to an ongoing relationship. The client will normally pay the lawyer a retainer fee to secure the lawyer’s representation. However, an attorney-client relationship may formed even without any fee-changing hands and without a signed agreement. If a lawyer gives legal advice to another seeking such advice, and the lawyer can reasonably foresee. That the prospective client will rely on that advice. The client reasonably believes he was being represented by the lawyer, an attorney-client relationship is formed.[2]
Merely arranging to consult with a lawyer, however, without the belief or expectation of legal advice or representation. Does not establish an attorney-client relationship, unless the lawyer agrees to take on legal representation for a specific matter.
One who consults with a lawyer does not necessarily become a client. The lawyer nevertheless assumes some duties towards the individual immediately as a prospective client. Specifically, any information the prospective client reveals to the laws pertaining to his legal circumstances cannot be revealed and may not be used to the disadvantage of the prospective client at a later time.[3]
Duties to the Client
There are many aspects of the attorney-client relationship which are governed by the rules of professional responsibility. The two most basic duties are the duties of competent representation and diligent advocacy.
A lawyer required to provide competent representation for a client. To meet this duty, a lawyer must employ the legal knowledge, skill, thoroughness and preparation necessary for the representation. The competence requirement does not mean that a lawyer must have special training or prior experience in a specific area of law. Before agreeing to represent a client in a matter pertaining to that area of law. Still, the lawyer should only undertake the representation if she can acquire the knowledge and preparation needed for adequate representation. Through study or association with another lawyer more familiar with the area of law.
Some jurisdictions have more specific delineations of what constitutes competent representation. This may include requirements such as informing the client of areas of law beyond the lawyer’s competence, attending to the details and schedules needed to assure the matter is handled without harm to the client’s interests, gathering sufficient facts regarding the client’s problem, determining the applicable law and developing a strategy for solving the client’s legal problems.
A lawyer must also act with reasonable diligence and promptness. Reasonable diligence understood to mean acting with commitment and dedication to further the interests of the client, and to proceed with zeal in advocacy on the client’s behalf.
Still, diligence and zeal do not require the lawyer to press for every possible advantage for their client, nor does it mean that a lawyer must employ offensive tactics, or refrain from treating others involved in the legal process with courtesy and respect.
Attorney-Client Privilege
While the duty of confidentiality prohibits a lawyer from disclosing information relating to a representation as a matter of legal ethics, the attorney-client privilege protects information communicated to an attorney as a matter of law. Private communications with an attorney privileged and may not compelled. Lawyers with information disclosed to them as part of confidential communication with a client may not testify regarding the content of that communication unless the client waives the privilege.
The purpose of the privilege to encourage free and open exchange of information between attorney and client, without concern that what said between them can used as evidence against the client.
Unlike the duty of confidentiality, which covers all information relating to the representation from whatever source, the attorney-client privilege only applies to information privately communicated by the client to his lawyer. Specifically, the privilege protects communications between a lawyer and a client, communicated outside of the presence of third parties,made for the purpose of obtaining legal assistance or advice. These communications need not be oral, as privilege covers written documentation such as letters, emails, texts or any other mode of communication made in confidence to an attorney.
The presence of third parties breaks the privilege, though there is an exception when the third party shares a common legal interest with the client, or if the parties have signed a joint defense agreement. Likewise, if the client subsequently reveals the content of the confidential communication to a third party, or makes it public, he is considered to have waived the privilege, and testimony regarding that communication may be compelled through discovery or testimony.[4]
[1] Berry v.McFarland, 278 P.3d 407 (Idaho 2012).
[2] Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686(Minn. 1980); Calhoun v. Tapley, 395 S.E.2d 848 (Ga. Ct. App. 1990).
[3] Model Rules of Professional Conduct rule 1.18 (American Bar Association 2018).
