Washington Lawyer

Speaking of Ethics: Who Is Your Client?

From Washington Lawyer, February 2005

By Ernest T. Lindberg

Illustration by Mick Wiggins Identification of who enjoys the protections afforded a client by the D.C. Rules of Professional Conduct is particularly critical in matters of client confidences (Rule 1.6) and conflicts of interest (Rules 1.7, 1.8, 1.9, 1.10, and 1.11). No single incident has been determinative in establishing the relationship.

The D.C. Court of Appeals, commenting on the subject, stated, “The existence of an attorney-client relationship is an issue to be resolved by the trier of fact and is predicated on the circumstances of each case.” In re Lieber, 442 A.2d 153 (D.C. 1982). In Lieber the lawyer was on the roster of volunteer lawyers providing legal assistance to inmates in pro se civil actions. After being assigned, the lawyer failed to enter an appearance even after notice from the court and calls from the client. The court added, “It is well established that neither a written agreement nor the payment of fees is necessary to create an attorney-client relationship.” Id.; see also In re Russell, 424 A.2d 1087 (D.C. 1980). Moreover, a relationship may be formed even when the lawyer does not take any substantive action or give any legal advice.

The following discussion points out some of the circumstances that require careful consideration in communicating with and identifying the client.

According to Rule 1.13(a), when an organization is the client, the “lawyer employed or retained by [the] organization represents the organization acting through its duly authorized constituents.” Comment [2] to Rule 1.13 identifies the “constituents,” and stresses that the provisions apply equally to unincorporated associations.

D.C. Ethics Opinion 305 (2001) extensively examines various ethical issues arising from the relationship and notes, in summary, “Representation of a trade association does not, without more, create an attorney-client relationship with each member of the association; particular circumstances of a representation, however, may create an attorney-client relationship with one or more of the members.” See also Griva v. Davison, 637 A.2d 830 (D.C. 1994), where the client’s perception of the relationship is controlling.

Any application of Rule 1.13 to government lawyers must take into account the differences between the government and other organizations. The government agency is the client of the lawyer employed by the agency. The provisions of Rule 1.11 and its comments assist in identifying with greater particularity the client. See also D.C. Ethics Op. 268 (1996) (conflict-of-interest issues where private lawyers provide volunteer legal assistance to the D.C. Corporation Counsel).

Government lawyers need to be particularly aware of the requirement to identify for whom they are acting. See D.C. Ethics Op. 240 (1993) (ethical obligations of D.C. Corporation Counsel attorneys representing custodial parents in Social Security Act Title IV-D cases). When in a nonrepresentational capacity and where permitted by law, government attorneys are permitted to misrepresent their status. See D.C. Ethics Op. 323 (2004) (misrepresentation by an attorney employed by a government agency as part of official duties).

In today’s Internet world the “chat room” provides an opportunity for lawyers to form an attorney–client relationship inadvertently. D.C. Ethics Opinion 316 (2002) cautions the lawyer participant to be careful, to emphasize that the lawyer is providing only general information that may not apply to the inquirer’s specific situation. Confusion about whether or not a lawyer is representing a client may also arise in the context of purchasing a chose in action where a nonlawyer might rely on the lawyer’s “expertise.” In the circumstance of such activity D.C. Ethics Opinion 319 (2003) cautions care. Similarly, the need to identify clearly the lawyer’s role when dealing with a nonlawyer is detailed in Opinion 306 (2001) (practicing law while simultaneously selling insurance).

When involved in a joint representation, it is critical to identify who the lawyer represents if a conflict arises and to recognize when withdrawal is the only available course. D.C. Ethics Opinion 296 (2000) considered the matter of an employer who hired a law firm to obtain a work trainee visa for its alien employee and the law firm’s subsequent discovery that the alien had lied about the credentials that qualified her for the visa.

In a joint representation the lawyer owes the duties of loyalty and confidentiality to each client. Comment [8] to Rule 2.2 focuses on the difficulty of balancing duties to two clients in the same matter: “In a common representation, the lawyer is still required both to keep each client adequately informed and to maintain confidentiality of information relating to the representation.” Rule 2.2(b) requires that the lawyer provide “both clients with an explanation in writing of the risks involved in the common representation and of the circumstances that may cause separate representation later to be necessary or desirable. The consent of the clients shall also be in writing.” The prudent course for a lawyer undertaking a joint representation is to address the issue of disclosure at the outset of the retention that relates to the representation.

What of the client who, in shopping about for a lawyer, hopes to “conflict out” all the best firms that might be approached by a potential opponent? In anticipation of this “beauty contest” client, Rule 1.10(a) finds that the conflict created by the interviewing lawyer is not imputed to the firm:

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(b), 1.9, or 2.2; provided, however, that this paragraph shall not apply if an individual lawyer’s disqualification results solely from the fact that the lawyer consulted with a potential client for the purpose [of] enabling that potential client and the firm to determine whether they desired to form a client-lawyer relationship, but no such relationship was ever formed.

Significant among the difficulties confronted by many lawyers is the failure to identify who the lawyer represents. The opinions cited above, and others issued by the D.C. Bar Legal Ethics Committee, repeatedly advise lawyers to make certain they identify who they represent.

Legal ethics counsel Ernest T. Lindberg and Lisa Weatherspoon are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at [email protected].