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How in the World Can You Not Know Who Your Client Is?

4 min read

How in the World Can You Not Know Who Your Client Is?

From time to time, I get involved in conversations with lawyers who have called in with a question or concern, and as we talk through the situation, it becomes clear that part of the problem is the lawyer doesn’t know who his client is. These are the times I find myself asking “How in the world does this happen?” Here is one example.

A lawyer’s long-term client and non-client sister contacted this lawyer to discuss their concerns over the unwillingness of their parents to follow through with some agreed upon necessary estate planning. These siblings were well aware that absent proper estate planning, the death of their parents would result in potentially devasting tax consequences. After hearing their concerns, the lawyer agreed to get involved.

Shortly thereafter, the siblings introduced the lawyer to their parents; and as an extra incentive to help move them along, even agreed to cover the lawyer’s bill. The lawyer met with the parents and got the ball rolling. While there were additional conversations with the kids and parents, over time it became clear that the parents just weren’t going to commit. The lawyer allowed things to remain in limbo for a while. Then, as it sometimes can, the unexpected happened. The parents were killed in an unfortunate accident, which now meant the tax consequences were going to play out as feared. The lawyer wasn’t too worried however, because he believed the siblings were not his clients; but of course, the two siblings saw things differently. “Houston, we have a problem.”

The issue of not knowing who the client is occurs more often than you might think. Yes, oft times lawyers do know who their client is and the clarity they have will remain throughout the course of representation; but this isn’t always the case. The story shared above is just one of a number I could share because confusion over who the client is can and does occur, and the problem isn’t limited to the estate planning practice area.

This reality raises an interesting side question. Is the failure to determine who one’s client is an ethical misstep? While there is no direct rule that speaks to a lawyer’s obligation to determine who and who isn’t a client, several rules are certainly implicated. For example, ABA Model Rules 1.1, Competence, 1.2 Scope of Representation and the Allocation of Authority Between Client and Lawyer, 1.4 Communication, 1.7 Conflicts of Interest: Current Clients, and 4.3 Dealing with Unrepresented Person immediately come to mind.

Think about it. Comment [5] to Model Rule 1.1 states the “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem...” If lawyers are to keep their clients reasonably informed (Rule 1.4) in order to allow them to effectively participate in the decision making process of their legal matter, abide by their client’s decisions (Rule 1.2) concerning the objectives of representation, comply with their obligations to avoid concurrent conflicts of interest (Rule 1.7), and clarify their role with unrepresented persons with whom they must interact with while representing a client (Rule 4.3) they can only do so with a clear understanding of who the client is. The only way to get there is to remember to stop and take the time at the outset of every new matter to review the fact pattern and make that determination in accordance with Rule 1.1. As I see it, the failure to do so is asking for trouble from the get-go.

That said, in my mind the issue of not knowing who the client is is more of a malpractice concern than an ethical misstep. Common mistakes include the following. The lawyer never takes the time to make the determination upfront. The lawyer fails to stay within the boundaries of her role as the representation progresses. And finally, the lawyer fails to clarify her role to non-clients from the very beginning and confusion reigns. Such missteps can easily lead to the unintended creation of, and far too often unrecognized, attorney-client relationships that eventually create all kinds of problems for the lawyer, to include conflict concerns that can leave the lawyer with no option other than to withdraw from representation.

Every lawyer must take the time to determine who the client is from the outset and then, if and when circumstances change during the course of representation, repeat the process as necessary. The analysis called for can at times become very fact specific. Start by determining to whom will your duties and loyalties flow if you take a new matter on. Think about whose confidences must be maintained. This step in and of itself can help clarify the situation. While it’s tempting to conclude you will be representing the person you will be primarily interacting with while providing legal services, that’s not necessarily the case, particularly in the context of handling corporate matters. Others will too quickly conclude that the client is going to be the person who will pay their bill. Again, this isn’t always the case. You might also focus on the scope of representation. What are you being asked to do? Who will be relying on your legal advice? Will the representation bring about any conflicts? The answers to these questions will often provide further clarity.

Once you know who your client is, specifically identify the client by name in your engagement letter. When dealing with corporate entities, it can be just as important to similarly document who isn’t your client. This step is essential because failing to do so is a way of giving yourself permission to avoid going through the necessary analysis just discussed. In addition to documenting who is, and when called for, who isn’t your client in your engagement letter you should also set forth the scope of representation. Defining the scope of your work further solidifies your role, not only in your mind, but also in the minds of those you will be interacting with going forward.

Finally, once you have clarified who is and who isn’t your client and thoroughly documented such, there is value in periodically taking a moment to review what you initially concluded as the course of representation evolves. Sometimes circumstances change. Sometimes non-clients become confused about your role. Sometimes you are the one who has become confused. Regardless of the reason, take a little time to make sure you’re still on the right track and, if necessary, have whatever conversations are called for in order to make certain all non-clients remain clear as to your role and then document these conversations. Yes, this may take a little extra time, but I know more than a few lawyers who would tell you taking that time is well worth it.

Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 600 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.

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