 By Paul Knisely
Kinsely & Prehoditch, Austin
pek@jump.net
Who among us has not been at a party, a sporting event, or a wedding reception
where a person wants some “quickie” advice concerning a legal
problem:
Oh, you’re a lawyer, huh? Well, you could
probably answer this for me, because it’s a legal question. I won’t
take but a minute of your time. Would you mind? Often you don’t mind, unless the question is about some aspect of
the law of which you have no clue. You might politely demur or refer the
person to someone you know who practices in that area of the law. But if
the inquiry falls in the area of law in which you practice, what should
you do? If you give an off-the-cuff answer, could there be adverse consequences
for you and/or your professional liability insurer?
It is doubtful and very unlikely, but not inconceivable, that by giving
legal advice to someone seeking it, however informally, you could be found
to have established an attorney-client relationship for which, if the advice
turns out to be incorrect and harmful to that person’s legal interests
in question, you could become liable to your “casual client”
for legal malpractice. The reason this possibility exists, remote as it
may be, is that an attorney-client relationship does not require a formal
contract or engagement, nor any sort of fee agreement, nor even an express
consent to become a person’s attorney; it can be established by a
course of dealing or conduct that evidences a meeting of the minds or an
“implied contract” that the lawyer is providing legal advice,
representation, or services to the putative client. (1)
Moreover, independent of the question of whether an attorney-client relationship
has been formed, if the circumstances could reasonably lead someone to believe
that an attorney is providing legal services, and the person is relying
on the attorney’s advice or counsel, an attorney alternatively can
be held liable for the negligent failure to advise or warn that person that
the attorney is not representing that person. (2)
Of course, no reported cases have involved claims of liability based merely
on a cocktail-party conversation or the furnishing of legal advice in a
similarly casual setting. It is difficult to envision a court or jury finding
sufficient manifestations of an attorney-client relationship in such a situation.
But beware. If the advice is (a) substantive, (b) relied upon, (c) wrong,
and (d) significantly harmful, a legal malpractice claim could materialize
out of such an unanticipated attorney-client scenario.
To avoid this possibility, it would be wise, at the least, to warn anyone
informally seeking your legal advice or opinion that you are not that person’s
lawyer, do not represent them on that matter, and are not offering professional
advice to be relied upon. Perhaps the best answer to a legal question predicated
on a “You’re a lawyer, aren’t you?” introduction
at a football game or family gathering is simply “I don’t know.”
But if you do know, and are willing to venture an answer, be sure to precede
it with a clear disclaimer — preferably with a friendly witness present.
Notes - See, e.g., Nolan v. Foreman, 665 F.2d 738, 739,
fn. 1 (5th Cir. 1982) (fiduciary duties of attorney to client extend even
to preliminary consultations: “All that is required under Texas law
is that the parties, explicitly or by their conduct, manifest an intention
to create the attorney/client relationship.”); Vinson & Elkins
v. Moran, 946 S.W.2d 381, 404-5 (Tex. App. — Houston [14th Dist.]
1997, writ dism’d by agr.) (attorneys for estate executors found to
have also represented beneficiaries by course of direct contacts and advice
to them: “To determine if there was an agreement or meeting of the
minds, one must use objective standards of what the parties said and did
and not look to their subjective state of mind.”); Kotzur v. Kelly,
791 S.W.2d 254, 257 (Tex. App. — Corpus Christi 1990, no writ) (acts
and statements of lawyer representing father in sale of land to children
may have created attorney-client relationship with children); Prigmore v.
Hardware Mutual Insurance Co., 225 S.W.2d 897, 899 (Tex. Civ. App. —
Amarillo 1949, no writ) (“A contract of employment may exist merely
as a result of an offer or request made by the client and an acceptance
or assent thereto by the attorney.”). See also Texas Disciplinary
Rules of Professional Conduct, Preamble § 12 (“Most of the duties
flowing from the client-lawyer relationship attach only after the client
has requested the lawyer to render legal services and the lawyer has agreed
to do so. For purposes of determining the lawyer’s authority and responsibility,
individual circumstances and principles of substantive law external to these
rules determine whether a client-lawyer relationship may be found to exist.
But there are some duties, such as that of confidentiality, that may attach
before a client-lawyer relationship exists.”); Restatement of the
Law Governing Lawyers (1998), § 14 (“A relationship of client
and lawyer arises when: (1) a person manifests to a lawyer the person’s
intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or (b) the lawyer
fails to manifest lack of consent to do so, and the lawyer knows or reasonably
should know that the person reasonably relies on the lawyer to provide the
services ….” But, in comment c, the authors flatly state, without
citation of authority, that “a lawyer may answer a general question
about the law, for instance in a purely social setting, without a client-lawyer
relationship arising.”); C. Herring, “Legal Malpractice In Texas,”
§3.28, Lack of Privity (“Practice Tip: … Whether a lawyer-client
relationship exists is a question of fact, and a lay person may infer that
such a relationship is present even when you have no such intent. Consequently
you should be careful about giving ‘free advice’ in social settings.”)
- See, e.g., Parker v. Carnahan, 772 S.W.2d 151, 156
(Tex. App. — Texarkana 1989, writ denied) (attorneys’ informing
wife about husband’s tax problems could have led wife reasonably to
believe that the attorneys represented her interests); Burnap v. Linnartz,
914 S.W.2d 142, 148-51 (Tex. App. — San Antonio 1995, writ denied)
(attorney for partnership failed to advise limited partner whom he never
met that attorney did not represent limited partner’s interests in
preparation of documents for transactions among partners).
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