Concept
Relationship Without a Contract
Client-lawyer contracts
Relationship Without a Contract
A lawyer owes duties of care, loyalty, and confidentiality to anyone with whom the lawyer has a client-lawyer relationship, and that relationship forms under a test of its own. Under Restatement (Third) of the Law Governing Lawyers § 14, it arises when a person manifests an intention that a lawyer provide legal services and the lawyer manifests consent. It also arises when the lawyer fails to manifest a lack of consent and knows or reasonably should know that the person is reasonably relying on the lawyer to provide them.1 A tribunal's appointment of a lawyer for a person creates the relationship too. Each route turns on what the person and the lawyer manifested to each other, and none requires an exchange of promises. The relationship and the engagement contract described in the earlier sections are therefore different things that often, but not always, arrive together.
Restatement (Second) of Contracts § 3 defines a bargain as an agreement to exchange promises, to exchange a promise for a performance, or to exchange performances.2 That structure supplies the commercial side of an engagement: a fee, a scope of work, and a remedy if either side fails to perform. The relationship supplies the protective side, because a lawyer's duties to the person served attach when the relationship exists and do not wait for a fee to be agreed. Two features of the test explain why it is kept apart from the bargain. First, it asks about the person's reasonable perspective. People seeking legal help rarely know the formalities of contracting, and a rule that protected only those who had struck a bargain would leave the least sophisticated people unprotected. Second, it places the risk of silence on the lawyer, who can prevent an unwanted relationship at almost no cost by saying plainly that the matter is declined. The subsections below take up how the relationship forms, the duties that attach where no bargain exists, and the two edges of the relationship, the prospective client and the stranger.
How the Relationship Forms
A person who wants legal help reaches toward the lawyer by manifesting that wish, and the lawyer answers either by agreeing or by staying silent when a reasonable person would read silence as agreement. The first route is the straightforward one: the person asks and the lawyer says yes. The second covers the lawyer who never says yes. A relationship can be implied from the circumstances when the lawyer knows or should know that the person is reasonably relying on the lawyer for legal services and does nothing to negate that reliance.3 Silence counts as consent here for the same reason conduct could carry a promise in the earlier section on how promises are made. The person cannot see the lawyer's private plans, and the lawyer can prevent the inference simply by speaking.
In Togstad v. Vesely, Otto, Miller & Keefe, a person consulted a lawyer about a potential medical malpractice claim, and the Minnesota Supreme Court treated seeking and receiving advice, when a reasonable person would rely on it, as enough to form the relationship.4 Three facts carried the result: the person sought legal advice, the person reasonably relied on the answer as legal advice, and the lawyer made no effort to dissuade that reliance. Neither a signed retainer nor payment of a fee is necessary, although both are relevant evidence of the two manifestations, and a fee paid by someone else does not by itself make the payor a client.5 The fee and the signature prove consent and reliance. They are not the relationship itself.
The same question arises in transactional settings. In Schwedes v. Romain, the sellers' lawyer told the buyers that a closing had been postponed and that their offer to forward the full purchase price was unnecessary. The case poses the problem of whether a lawyer who did not formally represent the buyers had nonetheless given them legal advice.6 Answering it means asking the two questions the test supplies: whether the buyers manifested a wish for the lawyer's help, and whether the lawyer consented or knew they were reasonably relying on what he said.
A lawyer at a similar gathering who answers, "You have a strong case, and nothing is due for months," and who then watches the listener give up plans to hire anyone, has given an answer a reasonable listener would rely on and has done nothing to negate that reliance. The relationship in that second scene rests on the same two manifestations as in Togstad, and no fee or signature entered into either scene.
Duties Without a Bargain
A relationship can exist where nobody exchanged anything, and appointment is the cleanest example. When a tribunal appoints a lawyer to represent a person, as when a court assigns counsel to a defendant who cannot afford one, the relationship exists from the appointment. The person needs representation whether or not any bargain could be struck, so the lawyer's duties must attach without an agreement.
The contrast with the bargain is direct. A bargain is an agreement to exchange promises or performances, so each side's contribution is given for the other's.8 The appointed defendant offers the lawyer nothing in exchange for the representation, so no bargain exists, yet the relationship and its duties are fully in place.
A lawyer who helps a friend for free stands in a similar position. A promise made in exchange for nothing is a gratuitous promise, and it is not ordinarily legally enforceable.9 The friend therefore could not sue in contract to compel the help. The formation test asks only about consent and reliance, however, so a lawyer who agrees to help and a friend who reasonably relies on that agreement have formed the relationship without any bargain. That matters because malpractice is a fault-based claim, and the relationship, like a contract, is what establishes the lawyer's general duty to provide professional care. Without a relationship there is rarely a duty, and without a duty there is no liability for breaching one.10
The older law of gratuitous undertakings shows the same separation. In Thorne v. Deas, a ship's co-owner told the captain to sail and said he would insure the vessel when the captain left. The captain left port in reliance, no insurance was bought, and the ship was wrecked. The court refused recovery on the promise because nothing had been given for it, treating the failure as nonfeasance, while recognizing that a defendant who actually began to perform and did so negligently could be held liable for that misfeasance. Modern law adds promissory estoppel, under which a promise that the promisor should reasonably expect to induce action or forbearance, and that does induce it, is binding if injustice can be avoided only by enforcing it.11 A lawyer's free undertaking can therefore lead to liability through reliance or negligent performance. The mistake to avoid is concluding that no consideration means no duty.
Where the parties do strike a bargain, the contract adds what the relationship alone does not supply: an agreed fee, an agreed scope, and a contract remedy for breach. Where they do not, a court that orders payment for services conferred acts in restitution to prevent unjust enrichment. That remedy is imposed by the court and is not a contract at all.
Prospective Clients and Strangers
A person who merely consults a lawyer about possible representation may be a prospective client even though no engagement follows. Timing explains why. People decide whether to hire a lawyer by describing their problem, so the disclosures come before any contract exists, and protection that waited for the engagement would leave the first conversation unprotected. Togstad shows the setting, because the person there consulted a lawyer about a possible claim and sought advice before any representation was agreed.13 The conflict-of-interest consequences that Model Rule 1.18 attaches to prospective clients are taught elsewhere, and this chapter stops at recognizing when the status exists.
A stranger's unilateral message is a different matter. Courts agree that a would-be client's one-sided belief, or an unreasonable belief, that a lawyer is acting for the person does not create the relationship, and many look for a concrete communication asking that the lawyer represent the person.14 The formation test explains why. A message the lawyer never invited, and perhaps never read, gives the lawyer no occasion to consent and no reason to know that anyone is relying on the lawyer. If every uninvited email could bind a lawyer to duties or disqualify the lawyer from other work, lawyers would be saddled with obligations by communications they never chose to receive.
The two scenes divide on invitation and response, and the amount of detail in the message has no bearing on the answer. An exam stem that reports a stranger's detailed email therefore asks whether the lawyer did anything to invite it or to answer it in a way that invited reliance.