Communication with non-clients

This article covers communications with non-clients, which is different than communications with clients.

The primary concern is the creation of an attorney-client relationship and all the duties that entails. It is axiomatic that an attorney owes a duty of confidentiality to a client where an attorney-client relationship.

An attorney-client relationship is created by contract, either implied or express. An implied contract may arise from the totality of all circumstances, such as:

• Whether the attorney volunteered his or her services to a prospective client. (See Miller v. Metzinger, supra, 91 Cal.App.3d 31, 39);
• Whether the attorney agreed to investigate a case and provide legal advice to a prospective client about the possible merits of the case. (See Miller v. Metzinger, supra, 91 Cal.App.3d 31);
• Whether the attorney previously represented the individual, particularly where the representation occurred over a lengthy period of time or in several matters, or occurred without an express agreement or otherwise in circumstances similar to those of the matter in question. (Cf. IBM Corp. v. Levin (3d 1978) 579 F.2d 271, 281 [law firm that had provided labor law advice to corporation for several years held to be in an ongoing attorney-client relationship with corporation for purposes of disqualification motion, even though firm provided legal services on a fee for services basis rather than under a retainer arrangement and was not representing the corporation at the time of the motion.])
• Whether the individual sought legal advice from the attorney in the matter in question and the attorney provided advice. (See Beery v. State Bar (1987) 43 Cal.3d 802, 811 [239 Cal.Rptr. 121]);•
• Whether the individual paid fees or other consideration to the attorney in connection with the matter in question. (See Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1403 [82 Cal.Rptr.2d 326]; Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 [226 Cal.Rptr. 532]);
• Whether the individual consulted the attorney in confidence. (See In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556 [20 Cal.Rptr.2d 132].
• Whether the individual reasonably believes that he or she is consulting a lawyer in a professional capacity. (See Westinghouse Electric Corp. v. Kerr-McGee Corp. (7th Cir. 1978) 580 F.2d 1311, 1319-1320).

An attorney-client relationship may not be created unilaterally—it takes two. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.

Hypo 1: Jones, a complete stranger to Lawyer, approaches Lawyer in a main courthouse hallway and asks, “Are you an attorney?” As soon as Lawyer replies, “yes,” Jones continues: “Doe and I have been charged with two burglaries, but I did the first one alone. What should I do?” In response, Lawyer declines to represent Jones and suggests that Jones contact the public defender’s office. Later, Doe seeks to hire Lawyer to defend him on the burglary charges to which Jones referred in his statement to Lawyer.

Hypo 2: Smith approaches Lawyer at a party after learning from the host that Lawyer is an attorney. Smith has no idea of the area of law in which Lawyer practices. During a casual conversation, Smith says, “My insurer won’t provide coverage to replace my office roof even though my business flooded last year during a rain storm, and even though I have paid all the premiums. Do you think there’s anything I can do about it?” Lawyer politely listens to Smith make that statement but as soon as Smith finishes, Lawyer tells Smith he is not in a position to advise Smith about his insurance situation. Later, Lawyer’s existing insurance company client, InsuredCo, which insures Smith’s business, assigns the defense of Smith’s claim to Lawyer.

Hypo 3: Lawyer receives a phone call at home from his Cousin. Cousin says, “Lawyer, I know you do legal work with wills and estates. Well, after Grandma died, I borrowed her car and wrecked it. Turns out the car wasn’t insured. Do you think that will be a problem when her estate gets resolved? Should I do anything?” Lawyer listened without interrupting, and then told Cousin he could not represent him. He suggested that Cousin call a referral service for a lawyer. Later the family hired Lawyer to probate Grandma’s estate, including obtaining compensation for the damaged automobile.

Primary sources

• Evid. Code, §§ 950–962
• People v. Gionis (1995) 9 Cal.4th 1196 [40 Cal.Rptr.2d 456]

Secondary sources

• Cal. State Bar Formal Opn. No. 2003-161
• Patrick Mazzarella, The Cocktail Party Phenomenon: A casual conversation can lead to ‘accidental representation’ — and some uncomfortable problems (Nov. 2008) State Bar J.