Formation Under Restatement Section 14

The client-lawyer relationship borrows its structure from agency, which requires consent on both sides: one person manifests consent that another act on that person's behalf and subject to that person's control, and the other consents to act.¹ Clients rarely hand a lawyer a document proving both consents, so courts need a test for deciding when the consents occurred without one. Section 14 of the Restatement (Third) of the Law Governing Lawyers supplies that test by applying mutual consent to the way lawyers and the public actually deal with each other.

Section 14 offers two routes to a relationship. Under the first, a person manifests to a lawyer the intent that the lawyer provide legal services for that person, and the lawyer either consents to do so or fails to manifest a lack of consent when the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide them. Under the second, a tribunal with power to do so appoints the lawyer to provide the services. Neither route requires a signed engagement letter or a fee, because consent is measured by outward words and conduct rather than by paperwork.

The first route divides in two, because the lawyer's consent may be stated outright or inferred from what the lawyer did and failed to say. The inferred form exists to stop a lawyer from collecting a person's confidences, letting that person count on the help, and then denying any agreement, which would give the lawyer a relationship's benefits without its duties. The second route dispenses with agreement altogether: a defendant who cannot afford counsel does not shop for a lawyer, so the court's order supplies the consent the parties never exchanged. All three variants share one limit, that the services be legal in nature, so a lawyer who sells her house to a stranger acquires no client. The subsections below take up express consent, implied consent, appointment, and that limit in turn.

Express consent is the agency definition applied in so many words.² Section 14(1)(a) of the Restatement (Third) of the Law Governing Lawyers carries that structure into legal work: a person manifests to a lawyer the intent that the lawyer provide legal services for the person, and the lawyer manifests consent to do so.³ Once both manifestations are given, the relationship exists. It is the baseline against which the harder routes in the next subsections are measured.

Each half of the express route asks for something specific. The person's half is a communication that tells the lawyer what is wanted. The lawyer's half is an agreement to act, which may be a signed engagement letter or nothing more than the words "I'll take it." The relationship rests on those two manifestations, so the quality of the paperwork bears only on how easily they can be proved.

A signed retainer is the clearest proof of both consent and a duty of care for the work it covers. Courts generally agree, however, that neither a signed retainer nor payment of a fee is necessary to form the relationship, although both are relevant evidence of whether the parties consented.⁴ The reason lies in what a writing requirement would do. A person who described a problem to a lawyer, received the lawyer's promise to handle it, and began relying on that promise would have no claim to loyalty, confidentiality, or competent work if the lawyer never drafted a letter, and the lawyer would control whether duties existed by choosing whether to prepare a document. Measuring consent by what the parties said and did removes that choice from the lawyer and protects the person who actually received the help.

An exam stem that stresses "no retainer was signed and no fee was paid" therefore does not end the analysis. In Edmonds v. Williamson, a husband neither signed a retainer nor paid a fee, yet he accepted the lawyer's services, and a client-lawyer relationship was found to have formed with him.⁵ His acceptance of the services was itself a sign that he wanted the lawyer to act for him, and no formality was needed to give it effect.

The analysis changes only when a manifestation is missing. Suppose a person emails a lawyer outlining an idea for a claim and asking whether the lawyer might take it, and the lawyer replies in writing the same day that she will not. The person has made a request, but the lawyer has manifested no consent and has said so. The missing retainer and fee were harmless in Edmonds, so they cannot explain this result; what differs is the lawyer's side of the exchange. Payment, in turn, cuts both ways: someone who merely pays for another person's lawyer is not thereby a client, a point this chapter takes up when it turns to identifying the client.

Consent need not be spoken. The agency definition asks for consent from the person who is to act as well as from the person who delegates, and it does not require that the consent take the form of a statement.⁷ Section 14(1)(b) of the Restatement (Third) of the Law Governing Lawyers uses that opening for the lawyer who never says yes. A relationship forms when a person manifests to a lawyer the intent that the lawyer provide legal services, the lawyer fails to manifest a lack of consent, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide them.⁸ The lawyer's silence in the face of known reliance supplies the lawyer's half of the exchange. Express consent needed two manifestations; this route needs one from the person and a lawyer whose silence completes the exchange.

The burden falls on the lawyer because the two sides understand the exchange differently. A layperson often cannot tell a casual conversation with a lawyer from the start of an engagement, while the lawyer knows what the exchange means legally and can end any ambiguity at almost no cost by declining the matter. A layperson who relies on a lawyer's professional status, confides in the lawyer, or seeks counsel on a legal problem, and whom the lawyer fails to dissuade affirmatively, can therefore hold the lawyer to the relationship.⁹ That is why experienced practitioners send non-engagement letters, telling a prospective client in no uncertain terms that the firm will not handle the matter. The practice returns under prospective clients.

Reliance is measured from the person's side of the conversation. The question is whether a reasonable person in that position would have relied on the lawyer for legal help, and the lawyer's private view that the exchange was informal carries no weight when the lawyer knew or should have known better.¹⁰ That is how a lawyer forms a relationship inadvertently: the standard does not ask whether the lawyer decided to take the person on, only whether the lawyer stayed quiet while a reasonable person leaned on the lawyer's help.

Had she written back the next morning that she could not take the matter and that his answer was due Friday, step two would fail and no relationship would form.

Decisions show how much the lawyer's own conduct can carry. In Warren v. Williams, a city attorney entered an appearance on behalf of a police officer who knew nothing of the suit, and the court treated the appearance as creating a client-lawyer relationship with the officer.¹¹ Appearing in court for someone signals as clearly as any act that the lawyer is acting for that person, and the officer's ignorance did not undo it.

The reasonableness requirement also protects lawyers from claims they could not have anticipated. Many courts have said that a belief held only by the would-be client, or an unreasonable belief, will not create a relationship, and many look for some concrete communication in which the person asked the lawyer to take the matter on.¹² A person cannot create a lawyer's duty by assuming it. Fees and retainers remain relevant as evidence, but their absence changes nothing here, because neither is required.¹³

Disputes of this kind rarely end early. Whether a duty exists is a question of law for the court, but many courts leave contested facts about the relationship to the jury, so a lawyer who denies the relationship often cannot win on summary judgment.¹⁴ In Dixon Ticonderoga Co. v. Estate of O'Connor, the Third Circuit treated as a question of fact whether a lawyer had agreed to pursue a claim, or knew or should have known that the client thought he had.¹⁵ That is the implied-consent test in miniature, and sending it to a fact finder shows the litigation risk a lawyer takes by staying silent. The court in Togstad v. Vesely, Otto, Miller & Keefe treated a consultation about a possible malpractice claim as enough when the person sought and received advice that a reasonable person would rely on, which carries the same reliance idea into consultations and receives its own treatment under prospective clients.¹⁶

Appointment by a Tribunal

Express and implied consent both find the agency definition's two consents in what the parties said and did.¹⁸ Section 14(2) of the Restatement (Third) of the Law Governing Lawyers adds a route of a different kind: a client-lawyer relationship also forms when a tribunal with power to do so appoints a lawyer to provide legal services for a person. A tribunal is a court or other body with power to decide a matter, and the appointment is the order that names the lawyer. The order is what matters. The relationship does not depend on the person's asking for the lawyer, on the lawyer's agreeing in the ordinary sense, or on any engagement letter.

The reason lies in who is being served. A defendant too poor to hire counsel does not shop for a lawyer, and the lawyer who receives the assignment did not pick that defendant. If the relationship had to wait for an exchange of consents, the person with the most urgent need for counsel would have no one owing duties of loyalty, confidentiality, and competent work, only because no bargain was ever struck. The appointment therefore stands in for the mutual consent that ordinarily creates the relationship, and the lawyer's duties attach when the tribunal acts. It is the one route in which the parties' own manifestations are not the source of the relationship, which sets it apart from the emailer above, whose request met the lawyer's refusal.

The appointment reaches only the person it names. A court that assigns a lawyer to one of two co-defendants has not assigned that lawyer to the other, and the second defendant, though seated at the same table and facing the same charges, has not become the lawyer's client through the order. That defendant could still become a client by another route, such as an express agreement or reliance the lawyer knew of and failed to dispel, but the appointment supplies nothing for a person it does not name. An exam stem that stresses the client never met the lawyer and signed nothing therefore points toward formation when a tribunal made the assignment, and toward the consent-based analysis when the person was left out of the order.

Legal Services Versus Other Dealings

The agency definition asks whether one person consented that another act on that person's behalf and subject to that person's control, and whether the other consented to act that way.²⁰ In a client-lawyer relationship, the thing the lawyer is to do on the client's behalf is legal work, so a relationship forms only around dealings that are legal in nature. A lawyer's profession does not follow her into every transaction. A person who buys a house from a lawyer has asked for a house, and the lawyer has agreed to sell one; neither has manifested consent to a delegation of legal work, so the exchange contains no principal and no agent.

The working rule is that the creation of an attorney-client relationship, as opposed to a personal, business, or other relationship, turns on the legal nature of the subject of the transaction. A lawyer who does business with a person with whom she has no existing professional relationship assumes no professional responsibilities to that person.²¹ The lawyer who sells her house to a stranger has therefore acquired no client, because the fact that she also has a legal career has nothing to do with that transaction.²² The same holds for a lawyer who owns and runs an independent non-legal business and keeps it scrupulously separate from her practice, because the customers of that business are not her clients.²³

The rule follows from what the relationship protects. It safeguards a person who entrusts a lawyer with legal matters and who expects confidentiality, loyalty, and independent judgment in return. The buyer of a lawyer's house, or a customer of a lawyer's hardware store, entrusted the lawyer with nothing legal and has no such expectation. A contrary rule would attach professional duties to every lawyer's private commercial life while protecting no one. A different situation arises when the other party is already the lawyer's client: special duties of disclosure and fair dealing apply when a lawyer does business with a client, a topic taught with the conflict rules, so the no-relationship result is confined to dealings with people who have no professional relationship with the lawyer.²⁴

The harder case arises when the lawyer's side activity looks like part of the practice. When a service a lawyer offers appears ancillary to her law practice and she has taken no affirmative steps to separate it, the person receiving it is entitled to expect that she will perform it in keeping with her duties to protect confidential information, avoid conflicts of interest, maintain professional independence, and advertise ethically.²⁵ Rule 5.7 of the Model Rules turns that expectation into a test. The traditional protections of the relationship attach unless the lawyer both performs the law-related services in a manner distinctly separate from the legal practice and takes "reasonable measures to ensure that a person obtaining the law-related services knows that the services are not legal services," as Rule 5.7(a)(2) puts it.²⁶

The two conditions are joined because each covers a gap the other leaves open. Separation speaks to what the person can see, such as whether a different office, staff, and record system signal a different kind of service. Disclosure speaks to what the person understands, because even a separate-looking service can be mistaken for part of the practice by someone who knows the provider is a lawyer. The lawyer controls both facts and can supply them at almost no cost, which is the same reasoning that put the burden of clearing up silence on the lawyer in the implied-consent cases earlier in this chapter.

Two opposite errors recur on this topic. The first treats the label as decisive: financial planning is not legal advice, so no relationship exists. That reasoning ignores Rule 5.7, which exists for services that are not legal but are offered in a way a person could mistake for part of the practice. The second assumes that every side venture of a lawyer carries professional duties, which overlooks that a lawyer who runs a hardware store apart from her practice has no clients among the shoppers. The analysis looks to the legal nature of the dealing and, for law-related services, to separation and disclosure.