Call it what you may: virtual representation, inadvertent dual representation, imputed attorney-client contract, or equitable attorney-client relationship. Under any label, attorneys should try to avoid involvement in situations where a person not considered to be a client might later assert that they believed that the attorney was in fact representing their interests. Cases arising out of an imputed attorney-client relationship, where the plaintiff contends that by the conduct and course of dealing they "must have been the attorney’s client," are some of the most difficult legal malpractice cases to prosecute or to defend.
When does an attorney have a "duty to warn" or "duty to disclose" the non-existence of an attorney-client relationship to a person or party? Unfortunately for attorneys, the majority of opinions decided in Texas forums have not provided a "bright line" of instruction as to how attorneys can avoid the imprimatur of an implied client relationship and avert the pursuit of litigation to resolve the issue. The learning curve for attorneys has been on a trial and error basis, a rather tortuous path.
Imputed or inadvertent representation cases are most often demonstrated in the context of partnerships, corporations, real estate, divorce, or any situation where an interested person or party may be unrepresented by counsel of their own. These cases are fraught with conflict issues under Disciplinary Rules 1.06-1.09, and informed consent becomes the critical factor in cases where common representation is attempted or alleged.
Under the rationale of Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App.--Texarkana 1989, writ denied), an attorney-client relationship may attach if the parties explicitly or by their conduct manifest an intention to create an attorney-client relationship. 772 S.W.2d at 156. Based on principles derived from the published and unpublished case law subsequent to and in line with Parker v. Carnahan, here are some practical suggestions in dealing more effectively with persons who might later assert that they had an attorney-client relationship with you, even though you had thought otherwise. Remember, ambiguity is not your ally.
(1) Document your intentions regarding the client you do represent, and those whom you don’t represent. Make those intentions known to any non-clients at the outset of the matter, and repeat them later, in the event circumstances appear to raise ambiguities about representation.
(2) Avoid communicating directly (in person, on the phone, or in writing) with persons who have no counsel or even those who do. Just because a person is known to have counsel does not mean they will not contend that you were their counsel, also.
(3) Do not hesitate to inform the non-client that they could or should consider hiring their own attorney to represent their interests. Careful drafting of an "independent counsel" letter can state this diplomatically yet assertively.
(4) If a situation seems to call for common or dual representation, acknowledge that a conflict or potential for conflicts does exist, and review Disciplinary Rules 1.06 - 1.09 for guidance in drafting a specific waiver of conflict or consent agreement based on informed consent, preferably given with benefit of advice from separate counsel.
(5) If you represent a client only in a particular capacity, or only as to a certain matter, document the particular limitations on the intended attorney-client engagement. Remain consistent with your actions until concluding the representation, at which time send a letter ending that particular representation agreement.
Like it or not, attorneys are vulnerable to malpractice claims from persons thought to be non-clients, who may later claim in essence, "I must have been his client," or phrased another way, "Oh, yeah, he was my attorney --yeah, sure, that’s it!" Hindsight is a harsh teacher. Even if the shoe does not fit very well, the attorney may have to wear it if an attorney-client relationship is found to exist.
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