It is commonplace for attorneys to post content online analyzing legal issues or breaking news to further their professional brand or as part of business development. These posts may appear on blogs, social media, or their firm’s website. Regardless of where they appear, such posts can create legal malpractice risks.
Consider the following scenario. After posting an article about the state’s requirements for filing a document for a tax relief program, an attorney receives an email from a member of the public asking what financial documentation is required to support the filing. The attorney replies, noting that while the attorney cannot advise on the person’s specific situation, the general requirements for supporting documentation are set forth in specific regulations and case law. Fast forward to a few months later, the attorney receives a legal malpractice claim from that member of the public, arguing they failed to receive the tax benefit after relying on the attorney’s article and follow-up “advice.”
Even though this hypothetical claim would appear to have little merit on its face, it is possible that a court would require significant discovery or litigation before dismissing the claim, given the attorney’s actions. Indeed, although an attorney’s liability for professional negligence is generally limited to the class of people to whom the attorney owes a legal duty, there can be situations in which an attorney faces an unexpected claim from an unexpected source – such as the member of the public in the email hypothetical. That is because, under the doctrine of foreseeable reliance, a court could find that a professional owes a duty to those persons whom the professional is aware will rely upon the professional’s advice in the transaction, even where not a client. Courts may examine whether an attorney-client relationship was formed not only from the perspective of the professional but also from the perspective of the assumed “non-client” to determine whether that person reasonably believed they were receiving legal advice or had established an attorney-client relationship.
Here are some tips for how to minimize the risks of being on the receiving end of a legal malpractice claim from an unexpected source.
Defining the relationship
Engagement letters help define the attorney-client relationship, including identifying the client, specifying the scope and duration of the representation, and confirming the fees for such services. Thus, the engagement letter can be a valuable tool in rebutting a suggestion that a representation extended to a party beyond just the client or a matter beyond the specific representation identified in the letter.
For example, an engagement letter could state that an attorney is providing legal advice to a company about a specific issue. It could also clarify that the attorney is not being hired to act on behalf of or provide advice to the executives of that company. Then, if an executive later claims that he or she believed the attorney was acting on their behalf, the engagement letter can help rebut that claim. Although engagement letters are not required to be so specific or to contain particular limiting language, using the engagement letter to limit implied or unintended attorney-client relationships can be a helpful defensive shield if a claim is made in the future.
Many law firms will not authorize billing to a new matter unless an engagement letter has been sent. Some firms may even put language in their engagement letters that mark the “end” of a representation, such as a specific period of inactivity, execution of a particular document, or the conclusion of an appeal. Without some definition or limitation on the representation, a court may assume that the representation is a general representation for all purposes, potentially opening the door to the argument that the attorney owed additional duties to the client that the attorney did not intend – which the attorney must then rebut through extrinsic evidence, if available.
Another important component that can be included in an engagement letter is “no assignability” language. Most states prohibit the assignability of legal malpractice claims. However, there can be narrow exceptions to this rule. For this reason, including nonassignment language in an engagement letter can help reduce the risk of a client assigning their right of action to a nonparty.
Closing the file
When it comes time to terminate an attorney-client relationship, a file closing letter can help provide clear guidance to the client and the attorney. Candidly, a file closing letter is often something that is overlooked as part of a lawyer’s regular practice. It is not required. But, such a letter can help rebut claims.
For instance, a file closing letter can impact the applicable statute of limitations if there is a potential breach of duty to a client. A file closing letter can confirm that the attorney owes no additional duties to the client. It can serve as evidence to rebut a former client’s assertion that they expected an attorney to continue the representation or take additional actions. Further, file closing letters can serve as evidence that an attorney’s duty, either to clients or others, has ended.
Using disclaimers
Non-clients may attempt to argue that any interaction with an attorney establishes an attorney-client relationship. The interaction could arise under various circumstances, such as via social media, blind email, or at a conference. The use of disclaimers, while not required, can help rebut any such assumptions. Indeed, a disclaimer can be used to defeat a claim of foreseeable reliance. Many law firms use disclaimers on their websites or online posts to confirm that their attorneys are not providing legal advice. Such language may also suggest that no attorney-client relationship is intended unless the “client” receives an engagement letter from the attorney.
Although these disclaimers are rarely an absolute defense against a claim from a non-client, they can nevertheless help reduce the chance that a court concludes a third party reasonably believed that they shared a confidential relationship with an attorney.