The Client-Lawyer Relationship · 10-16% of the exam
4.1.1Formation of the client-lawyer relationship (Rules 1.2 cmt., 1.18, 6.2)
Why
People bring a lawyer their worst problem before any paperwork exists. If duties began only at signature, a lawyer could hear a stranger's secrets over one free coffee and later use them against her. Tying obligation to the encounter rather than to the contract keeps the moment of trust from becoming the moment of exposure.
Plain English
A relationship can form:
- by express agreement,
- by conduct that induces reasonable reliance the lawyer knows or should know of, or
- by court appointment.
No signed document required.
A consultation obliges the lawyer to protect what was shared. Later work for a client with interests materially adverse to that prospective client's, in the same or a substantially related matter, is barred only where the disclosed information could be significantly harmful to that prospective client, unless both the affected client and the prospective client give informed consent confirmed in writing, or — as a cure for the firm's imputed disqualification, not for the consulting lawyer's own — the consulting lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, is timely screened with no share of the fee, and written notice is promptly given to the prospective client.
Context. No written contract is required; the relationship forms from conduct, and a no-engagement consultation still triggers duties under Rule 1.18.
The framework (Rules 1.2 cmt., 1.18, 6.2, and case law):
A client-lawyer relationship forms through one of three routes:
- Express agreement: the lawyer agrees to the representation.
- Implied agreement / reasonable reliance: the person manifests intent to hire; the lawyer's conduct (not silence alone) induces reasonable reliance; and the lawyer knows or should know reliance is occurring.
- Court appointment under Rule 6.2.
Implied formation test: would a reasonable person in the prospective client's position believe the lawyer was their lawyer? A question of fact.
Preventing formation: the lawyer must clearly and expressly decline. Passive non-response defeats reliance only when no prior lawyer conduct has induced it.
Rule 1.18 — duties to prospective clients regardless of whether representation results (taught fully in Chapter 8)
- Protect confidential information shared during any consultation, even if no engagement follows.
- That information can bar representing a client with interests materially adverse to those of the prospective client in the same or substantially related matter, only where the disclosed information could be significantly harmful to the prospective client in the later matter (Rule 1.18(c)), unless
- both the affected client and the prospective client give informed consent confirmed in writing, or
- — as a cure for the firm's imputed disqualification, not for the consulting lawyer's own — the consulting lawyer
- took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,
- is timely screened with no share of the fee, and
- written notice is promptly given to the prospective client (Rule 1.18(d)(2)).
- During the consultation, protect the prospective client's property and exercise reasonable care in any legal advice given.
Route to non-disqualification via no consultation (Rule 1.18(a)): Rule 1.18 duties attach only to a person who consults with a lawyer, and whether a consultation occurred depends on the circumstances. Information sent unilaterally, with no reasonable expectation that the lawyer was willing to discuss forming a relationship, is not a consultation — meaning no prospective-client status arises and the disqualification bar never triggers. This is a second, independent route to non-disqualification, entirely separate from the screen-and-no-fee exception under Rule 1.18(d)(2).
Example 1
Ex. 1
Kim disclosed in a consultation with Ben that her auto policy had lapsed before the collision. She did not retain Ben. Eight months later the insurer retained Ben for a substantially related coverage dispute, on interests materially adverse to Kim's. Rule 1.18 bars Ben personally unless both Kim and the insurer give informed consent confirmed in writing. Screening is not a route for Ben himself: Rule 1.18(d)(2) cures the imputation to his firm, letting a colleague take the matter provided Ben took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent Kim, is timely screened with no share of the fee, and written notice is promptly given to Kim. No retention and no fee don't change the analysis. Strike the fee and the retention from Kim's facts and watch how little moves.
Example 2
Ex. 2
Ana left a voicemail for an attorney about a contract dispute. The attorney never returned the call or took any other action. Ana later claimed the attorney was her lawyer. No relationship formed. Silence alone, with no prior lawyer conduct inducing reliance, is insufficient; Rule 1.18 duties don't attach without a consultation. Point to the thing the attorney did that Ana relied on — these facts give you nothing to point at.
Trap
Tip
Questions · 2
Q 01ch04-e01
Question 1 of 2 · Rule 1.18
Attorney practices commercial-lease work and publishes a general office address in a bar directory. Tenant, who had never spoken to anyone at the office, sent an unsolicited email setting out a rent-abatement fight in detail and attaching the lease and a note of the lowest figure Tenant would take. Attorney had invited nothing, ran no intake questionnaire, and never answered the message. Two months later Owner, the landlord in that same dispute, retained Attorney to press the claim against Tenant. Tenant learned of the retention and asked the court to remove Attorney from the case. Is Attorney subject to disqualification?
Keys 1 to 4 choose.