12 Déc Who Is a Client in Law

Lawyers must be able to identify who is their client and who is not in order to fulfill their professional obligations. Lawyers have fiduciary duties to their clients, including duties of loyalty and confidentiality, which the California Supreme Court considers to be the most fundamental characteristics of the attorney-client relationship.ii These obligations to the client are contained in the California Code of Business Conduct (the « Rules »), in particular Rule 1.6 (Client Confidential Information) and Rule 1.7 (Conflict of Interest: Current customers). What steps should a lawyer take to reduce the likelihood that a court will determine that there is a solicitor-client relationship between the lawyer and a shareholder or partner who initially engages the lawyer to create a business entity or asks the lawyer to represent the corporation on an ongoing basis? The engagement letter and the lawyer`s invoices and explanations are the obvious starting points. The engagement letter must accurately identify the client. For example, it would read: « ABC Corporation has engaged [a lawyer] to provide legal services in connection with [business or government affairs]. » Ideally, it should include an explicit statement that ABC Corporation is the lawyer`s sole client and not its shareholders or individual partners. If individuals specifically request the lawyer to form and organize ABC Corporation, the engagement letter must include: « A, B and C hereby direct [counsel] to establish and organize ABC Corporation and provide related legal services for the sole benefit of the company. Upon incorporation, ABC Corporation is deemed to be a client [of the lawyer] from the date of the first undertaking. It is very important that, in many matters of old law, you identify who is your client and who is not. When a lawyer is affiliated with a law firm, a client of a lawyer in the firm is generally considered a client of all lawyers in the firm from a practical point of view, at least in terms of conflicts of interest. According to Rule 1.10 (Recognition of Conflicts of Interest: General): « As long as a lawyer practises in a law firm, none of them may knowingly represent a client if one of them practises alone is prohibited by rules 1.7 or 1.9 », unless certain exceptions apply. The client relationship and the resulting potential conflict of interest of a lawyer in the firm are essentially assigned to all lawyers in the firm.

This article examines not only how entity representation theory governs the ethical aspects of the professional relationship between the lawyer and the business organization, but also how it plays a crucial role in liability regimes, such as claims for misconduct or breach of fiduciary duty. Typically, these lawsuits are brought by a component of the organization, usually a shareholder or partner, against a lawyer who has provided legal services to the company. In some cases, the elector will argue that there was also a client-lawyer relationship between the elector and the lawyer with respect to an element of representation of the corporation. Although courts generally reject an elector`s application for lack of standing, it is incumbent upon each lawyer to take specific concrete steps to reduce the risk of such a lawsuit. We offer some suggestions for improving the firm`s management practices to avoid confusion about the role of the lawyer. So how can a lawyer correctly recognize who is (or was) a client of the lawyer? In most cases, this is a relatively simple request: the lawyer and the client enter into a retention agreement that proves a relationship with the client for a particular matter.xi Sometimes, however, it is not entirely clear whether a client relationship has been established. And even if there is an attorney-client relationship, it may not be entirely clear who the client is. Some rules also require that a lawyer be able to identify who is not a client of the lawyer. Example: Rule 1.8.6 (Indemnification of a Client Other than the Client) states that « a lawyer shall not […] accept remuneration for the representation of a client by a person other than the client », unless certain specific conditions are met; Rules 4.2 (communication with a represented person) and 4.3 (communication with an unrepresented person) generally restrict a lawyer`s communication with a non-client; and Rule 7.3 (Solicitation of Clients) generally provides that « a lawyer may seek professional employment with a non-client only if certain conditions are met.