by Mark Bassingthwaighte, Esq., Risk Manager, ALPS
How in the World?
From time to time I get involved in con-
versations 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
seem to know who his client is. These are
the times I find myself thinking “How in the
world?” Here is one example.
A long-term client met his lawyer with his
non-client sister in tow. These two siblings
had real concerns about the seeming unwill-
ingness of their parents to follow through
with some necessary estate planning. The
kids were well aware that upon the death of
their parents, and in the absence of an es-
tate plan, the tax situation could be devas-
tating.
This lawyer agreed to get involved and
see if he could help. The kids made the in-
troduction, and as an extra incentive to help
move their parents along, even agreed to
cover the lawyer’s bill. The lawyer met with
the parents and got the ball rolling. There
were additional conversations with the kids
and parents but over time it became clear
that the parents just couldn’t commit. The
lawyer allowed things to remain in limbo for
a while; then, as it often does, the unexpect-
ed happened. The parents were killed in an
unfortunate accident. The tax consequenc-
es are going to play out as feared. The law-
yer believed the kids were not his clients;
but of course, the kids saw it differently. As
was so succinctly stated in the film Apollo
13, “Houston, we have a problem.”
The issue of not knowing who the cli-
ent is occurs more often than some might
think. Yes, in many situations who the cli-
ent is is quite clear and that clarity will re-
main throughout the course of represen-
tation. However, the story shared above is
just one of a number that could be shared.
Confusion over who the client is can and will
arise in a number of practice areas. An in-
teresting question for me has been: 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 de-
termine who and who isn’t a client, sever-
al rules are certainly implicated. Rules 1.1,
Competence, 1.2 Scope of Representation,
1.4 Communication, 1.7 Conflicts, and 4.3
Dealing with Unrepresented Persons imme-
diately come to mind.
Comment 5 to ABA 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 prob-
lem.” If we are to keep our clients reason-
ably informed (Rule 1.4) in order to allow
them to meaningfully participate in the de-
cision making process of their legal matter,
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If we are to abide by our client’s decisions
(Rule 1.2) concerning the objectives of rep-
resentation, if we are to comply with our ob-
ligations to avoid concurrent conflicts of in-
terest (Rule 1.7), and if we are to clarify our
role with unrepresented persons with whom
we must interact with while representing a
client (Rule 4.3) we 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. The failure to do so is simply asking for
trouble from the get go.
That said, the issue is really more of a mal-
practice concern than an ethical problem.
Here are the more common missteps I see.
The lawyer never takes the time to make the
determination and thus doesn’t know who
the client is. The lawyer fails to stay within
the boundaries of her role and begins ad-
vising non-clients as the representation pro-
gresses. And finally, the lawyer fails to clarify
her role to non-clients from the very begin-
ning and confusion reigns. All three missteps
can easily lead to the unintended creation
of, and far too often unrecognized, attorney
client relationships that can eventually result
in all kinds of problems for the attorney.
To avoid these problems a lawyer must
take the time to determine who the client
is from the outset and then, if and when cir-
cumstances change during the course of
representation, repeat the process as neces-
sary. The analysis called for can at times be-
come very fact specific. Start by determining
to whom your duties and loyalties will 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 situ-
ation. While it’s tempting to conclude that
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 cor-
porate matters. Others will too quickly con-
clude that the client is going to be the per-
son who will pay their bill. Again, this isn’t
always the case. You might also focus on the
scope of representation