Unlike in the case of other torts, the class of plaintiffs who could bring legal malpractice claims against lawyers is pretty limited. Legal malpractice claims can usually only be raised by a limited number of people to whom lawyers owe a legal duty to exercise care, diligence, and skill in the performance of professional services. There are, however, situations in which a court may consider that a lawyer owes a duty to people who are not their clients and other third parties.
Generally, these situations can occur in one of three ways: the first and most common is when a lawyer will agree to legally represent a client, usually by issuing an engagement letter. In these cases, it’s often indisputable that a sort of attorney-client relationship does in fact exist.
The second case is when an attorney-client duty can be found in situations where an attorney acts in a manner that leads a person to believe that the attorney is actually representing them. In cases such as these, an “implied” attorney-client relationship could be enough to sustain a legal malpractice claim. Courts will usually look at whether the attorney’s advice was sought and provided in such a way that a reasonable person would believe that there was an attorney-client relationship in place. The analysis typically looks at the facts from the potential client’s perspective.
The third case is when there are some common-law duties that a lawyer can owe a third party when they are aware that the third party will rely upon their advice. Unless the lawyer is aware that the third party will rely on their advice or opinions, the doctrine of “foreseeable reliance” might not apply.
There are several ways a lawyer can limit or avoid the risks associated with intentional or unintentional attorney-client duties. In the case of express attorney-client relationships, most lawyers use engagement letters or a fee contract to specify the exact terms of the representation, thus reducing the risk that a client will expect their lawyer to take on unspecified tasks. Implied or unintended representations can be avoided by using disclaimers.
Now we’ll look at some steps a lawyer can consider to help reduce the risks of being accused of legal malpractice.
Use File Closing Letters
When terminating an attorney-client relationship, using a file closing letter can help provide clear guidance to both the client and the lawyer. Closing a file can have an impact on any applicable statute of limitation and it can also terminate a lawyer’s duty to a former client. It can cease a lawyer’s obligation to disclose or provide relevant information and it helps to avoid a “springing” statute of limitations.
What needs to be included in a file closing letter depends on the needs of the law practice, as well as the unique circumstances of the representation. Many lawyers typically include a confirmation that the representation has ended, a notice that the now former client will no longer be provided with any legal services, a description of the lawyer’s or law firm’s document retention policies, as well as an accounting of all the funds the lawyer has received.
Closing files marks the end of a lawyer’s duty and is thus a good way to limit the possibility of receiving a claim from a third party.
Engagement Letters and Fee Contracts
Engagement letters serve to identify each client by their name and capacity, thus reducing the risk of claims by non-clients. In order to eliminate any misunderstandings, engagement letters may also state that the lawyer or firm does not represent anyone who has not been specifically named as a client and that no duties have been undertaken for anyone who has not specifically been named as a client. This can help avoid any implied or unintended attorney-client relationships.
Using non-assignability language in an engagement letter is another way that can help reduce the risk of an unintended attorney-client relationship. This would state that a client could not assign a claim for legal malpractice to an unrelated third party. While some jurisdictions don’t allow assignments of such claims, others do, but by including this language, lawyers may ensure that they are only held to the duties implicated by the unique attorney-client relationship.
A plaintiff cannot typically recover in a legal malpractice action unless there is an attorney-client relationship with the attorney-defendant, but there are some contexts in which courts may find that a lawyer owes duties to non-clients. A good way to reduce the risk of such claims is to use disclaimers whenever dealing with non-clients.
In the case of implied attorney-client relationships, lawyers can communicate to the non-clients that their firms do not represent the non-clients as lawyers and that the non-clients are entitled to obtain counsel if the wish to. A context in which this may be helpful is when, for example, a lawyer represents a company, but not each employee of said company.
Disclaimers can also be used to defeat claims of foreseeable reliance. Disclaimers, sometimes attached to a piece of work product, can alert third parties that they may rely upon the information provided at their own peril. Disclaimers can also state that no duties are assumed, intended, or created by the communication, as well as that if the third party has not executed a fee contract or an engagement letter, they are not legally represented by the lawyer or their law firm.
By considering these steps, an attorney can limit or even completely avoid the risk of non-clients bringing any claims of legal malpractice.