Legal Malpractice Implicated by Implied Attorney-Client Relationship

Michael Talve, CEO

Written by Michael Talve, CEO

- Updated on September 13, 2017

This case involves a college student who drowned in his university’s pool. The student’s mother considered the possibility of filing a lawsuit but was too distraught to get an attorney in the case. The student’s older brother worked as a bank security guard and saw an attorney in the lobby of the building where he worked. He approached the attorney asked if there was a time limit on filing a lawsuit. The attorney told him that he had two years to file a lawsuit. The attorney did not tell him that there was a 180-day deadline for filing a tort claim notice. The attorney did not tell him that he should not rely on her legal advice. The mother eventually retained a lawyer several months later. At that time, she learned that she had just missed the 180-day deadline for filing a tort claim. The student’s mother never had any face-to-face contact or telephone contact with the attorney about her tort claim.

Question(s) For Expert Witness

1. Can an attorney have an implied attorney-client relationship and if so, is it malpractice when the attorney gives the client incorrect legal advice that the client relies on?

Expert Witness Response

inline imageIn general, a client does not have to have a formal agreement with an attorney for an attorney-client relationship to be formed. Under the Rules of Professional Conduct, an attorney does not have to have a fee agreement with a client or be paid money by a client to form an attorney-client relationship with them. An attorney-client relationship may be implied when: (1) a person seeks legal advice from an attorney; (2) the advice sought is within the attorney’s professional competence: (3) and the attorney actually gives the advice. An implied attorney-client relationship can be formed only if the attorney should reasonably know that the client is relying on the attorney’s advice. In this case, an implied attorney-client relationship probably did not exist between the attorney and the student’s mother. The student’s mother never spoke with the attorney or contacted the attorney about the tort claim. Because of this, the attorney could not have reasonably known that the mother would rely on her advice. In this case, an attorney-client relationship probably could not have been implied by the conduct of either party, since the mother never met with the attorney to discuss the case and never thought that the attorney was representing her in the tort claim. Also, the attorney did not know that the mother would rely on her advice, which she gave only casually to her son.

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