Lawyers are often asked for free legal advice. It happens at parties, at the grocery store, via email and on online forums. The inquiries come from friends and family, as well as outright strangers, but they are all potential clients. Few attorneys stop to think that each piece of casual legal advice presents a potential conflict of interest for the lawyer or their firm. The risk of informal legal advice is that it generally is not subject to the conflict check procedures applied by many law firms. Yet conflict of interest claims can come from many sources, and not just where the attorney ignored the rules when representing a client during the course of a traditional attorney-client relationship.
Does a Relationship Exist? As part of a law firm’s file opening procedures, there are often steps that must be taken relating to client intake that allow the firm to identify potential conflicts of interest. One part of this procedure may seem simple: identify the new client. In practice, however, the identity of the client is not always straightforward, as not every attorney-client relationship begins with a prospective client who walks in the door and asks an attorney for legal services. Instead, an attorney-client relationship may be implied under the facts and circumstances, or may be created by a pattern of communications from the attorney to others. Advances in technology have further complicated this issue, as communications and requests for legal services can occur in forums on social media or in the comments section of a blog. Regardless of whether the communications are in-person or online, if an inquiry involves requesting or providing legal advice, it can be the basis of an attorney-client relationship—at least for purposes of the attorney-client privilege. In light of the protected nature of confidential information received from either a potential or actual client, a conflict of interest can exist. It is not difficult to imagine how informal requests for advice can lead to big problems. For example, consider a scenario where a friend reaches out to an associate at a law firm to ask how she can get her landlord to return her security deposit. The associate replies with the appropriate citations to the rules regulating security deposits and the related draft language for a legal demand. The friend then forwards the email with the associate’s language to the landlord. As it turns out, the landlord is a client of the associate’s law firm. Needless to say, these types of scenarios can lead to unexpected conflicts or can even impact the business relationship with a firm client. It is possible to mitigate some risk in these situations by including a disclaimer on emails that makes clear that no attorney-client relationship exists in the absence of an executed engagement letter or fee contract. However, while this can provide additional protection against a legal malpractice claim, it may neither provide any relief against a motion to disqualify or a bar grievance based on a conflict of interest nor address the likely client relations issues. Instead, law firms can implement a policy requiring attorneys to identify the potential client before providing any legal advice. It also may mean having some awkward conversations with friends and family that an attorney cannot provide legal advice—even in a conversational way.
Who Are the Clients? By identifying the potential clients before providing legal advice, a law firm can also determine whether there is more than one potential client and assess whether there are any multiple representation issues that might be implicated. For example, in a probate action, an attorney may be asked by one person to simultaneously represent the executor, estate, and beneficiary of an estate. An attorney could also be asked to represent both the president of a closely held corporation and the corporation itself. In these situations, it may not be obvious that there is more than one potential client, given that only one person requests legal advice from the attorney. Yet, for purposes of examining conflicts of interest, each separate capacity and each separate entity may be considered as a separate client. Further, if the interests of the individuals and entities differ, then the law firm may need to provide full disclosure and obtain consent to the representation in accordance with the rules.
Are the Conflicts Waivable? Typically, of course, there is no prohibition against a single attorney or law firm representing multiple clients in multiple capacities, and this may be completely proper in many circumstances. However, law firms can get into trouble if they believe that any conflict can be overcome so long as all clients provide their consent. Indeed, there are some conflicts that are not waivable and to which clients cannot consent, even if they are willing to do so. For example, Rule 1.7(b)(3) of the Connecticut Rules of Professional Conduct provides that an attorney cannot represent a client in connection with the assertion of a claim against another client in the same litigation or the same proceeding before any tribunal. Similarly, attorneys typically cannot represent a buyer and seller in the same transaction. In those circumstances, the representation may not be able to proceed, even if all clients consent to the representation.
What Do the Rules Say? The conflict rules may often seem intuitive and easy to apply, but there can be difficult factual scenarios where the proper course of conduct is less than obvious. For that reason, it is helpful to avoid the inadvertent creation of an attorney-client relationship before the law firm is able to ensure compliance with the rules and consider the potential implications of the representation. By utilizing standard intake procedures for both formal and informal legal advice, there is less risk that a conflict will arise from an unexpected source.