Yes, Virginia, There Really Are Accidental Clients
I will share that I can appreciate a well-crafted cocktail; but I can also assure you that when I am in a situation where such beverages are being served, I never allow myself to get involved in a conversation about someone else’s legal problems and I strongly encourage you to do the same. Let me share a short story as to why.
An associate at a law firm, who was not a litigator in any way, shape or form, attended a social function and perhaps had a few more than she should have. Regardless, she got involved in a conversation with another guest about a personal injury matter. In addition to sharing some generic advice, the associate also let the guest know there was still plenty of time to deal with it stating the statute of limitations in that jurisdiction was two years. Unfortunately, unbeknownst to our hero, there was an exception to the statute in play and the actual time to file suit was six months. The guest, relying on the advice received, postponed trying to obtain legal counsel until after the filing deadline had past. Associate and her firm were eventually sued for malpractice.
We are all well aware that drinking and driving can bring about serious consequences because, when one’s judgment and reflexes are impaired, accidents can happen. Dispensing legal advice over cocktails is similarly problematic. It’s simply too easy for the combination of a casual friendly setting coupled with the consumption of a few adult beverages to cloud your better judgment. Instead of leading to an automobile accident, however, you may find yourself having to deal with an accidental client.
Viable malpractice claims can easily arise out of situations involving an accidental client and these situations are not limited to casual conversations at cocktail parties. Casual conversations online, with extended family members or friends, and members of your church congregation or other community organizations you participate in are all additional examples of situations where you might want to proceed with caution. Unfortunately, we also can’t overlook the office setting. Should you be concerned about passing along a little casual advice in a conversation with a corporate constituent while representing the entity itself? How about discussing issues with beneficiaries while representing the estate, trying to help a prospective client out during that first meeting when you know you are going to decline the representation, being a good Samaritan by making a few suggestions to someone on the phone who clearly has a problem but really can’t afford an attorney, or answering a few questions from an unrepresented third party? The answer is, of course, yes. These are all situations that can easily lead to an accidental client. To underscore this point, who hasn’t heard the old saying “No good deed goes unpunished?” Now remember that old sayings become old sayings because they have a ring of truth to them.
I am always a bit surprised by the response of attorneys who have had to deal with a claim brought by an accidental client. Statements along the lines of “I never intended to create an attorney-client relationship,” “there was no signed fee agreement,” or “no money was exchanged so how could this be” are common; but it’s not about you! While these issues are not completely irrelevant, please understand that it is going to be more about how the individual you interacted with responded to the exchange. If whoever you were talking too happened to respond to the exchange as if they were receiving a little legal advice from an attorney about their legal issue and that response was reasonable under the circumstances it can start to get muddy. Worse yet, if it was reasonably foreseeable that this individual would rely or act on your casual advice and then in fact did so to their detriment, you may have a serious problem on your hands.
I share all this, not with a desire to try to convince you to keep quiet and never try to help someone else out. By all means do so. The world certainly could use a few more good Samaritans and a desire to help others through a little education is a good thing as long as you stay the course. I share all of this because I want you to be cognizant of the risk involved whenever you decide to step into those waters.
Here’s the bottom-line. Accidental clients are for real and there is no such thing as legal light. So, if you ever find yourself enjoying a wonderful evening at a party with a cocktail in hand and another guest, who has just learned you are an attorney, wants to pick your brain, keep the following in mind. Don’t talk about legal issues you are not well-versed in. If you feel compelled to pass along a little advice, I would encourage you to ask the necessary questions that would allow you to fully understand the situation before you put your lawyer hat on and start talking. Oh, and remember that at some point down the road the person you’re talking to may try to hold you accountable for the accuracy of whatever advice you ended up giving so you might want to jot down a few notes as soon as you can. Finally, and regardless of the setting, know that it’s ok to say you’re not the right person to be asking, particularly after you’ve had a few. That’s always going to be the safe play.
Authored by: Mark Bassingthwaighte, Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.