Ethics
Determining Current and Former Clients
Determining whether an individual is a law
firm's current or former client - for purposes of bringing suit against
the individual - depends upon a factual analysis and whether the person
reasonably expects that the firm is still his or her attorney.
by Dean R. Dietrich
Our firm keeps the original wills that we have prepared for clients.
I have been contacted by a business client to bring a lawsuit against
someone whose original will is in our safe deposit box, but for whom we
have not performed any legal work for the past 10 years. May I bring
suit against this individual?
Answer
The answer to this question turns directly on whether the individual
whose original will is in your safe deposit box would be considered a
current client or a former client. If this person is considered a
current client, you may not bring suit against this individual even if
both parties consented to the representation of the business client and
the lawsuit being brought. If the individual is considered a former
client (even though the original will is located in the firm safe
deposit box), you may be allowed to commence legal action against the
individual on behalf of another client, provided that the legal action
is not the result of or substantially related to the representation of
that individual in preparing the will. See SCR 20:1.9.
Thus, the first question to be determined is whether this individual
is a current client of your law firm. The State Bar Professional Ethics
Committee, in E-95-5: Formation
of Attorney-Client Relationship (in PDF format), noted that various
factors must be considered in determining whether an attorney-client
relationship exists:
"Whether an attorney-client relationship is formed depends upon the
intent of the parties and is a question of fact. Marten Transport v.
Hartford Specialty Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995). An
attorney-client relationship is not formed simply because one of the
parties knows that the other is an attorney. Such knowledge, however,
coupled with legal advice being sought and provided, ordinarily is
enough to establish the relationship."
This article is not a formal
opinion of the Professional Ethics Committee and is not to be
relied upon as having been approved by the Professional Ethics
Committee. Attorneys with questions or professional ethics issues may
contact the Ethics Hotline at (800) 444-9404, ext. 6168; or (608)
250-6168 (all day Wednesday); and (608) 629-5721 on Monday, Tuesday,
Thursday, and Friday mornings. Send written requests for Professional
Ethics Committee opinions to the committee c/o Keith Kaap, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158. |
Some of the factors that would normally be considered are the
reasonable belief of the individual that your firm is considered his or
her attorney, whether the individual is still receiving mailings or
newsletters from your firm, whether there has been any other contact of
a general nature over the past 10 years that could be considered legal
representation or advice giving, or whether the individual has referred
other prospective clients to your law firm.
In this case, if these factors suggest that the individual whose
original will is in your firm's possession reasonably believes that your
firm is his or her attorney, it is likely that the individual will be
considered a current client of the law firm, and you may not bring an
action against this current client because of the rigorous requirements
of SCR
20:1.7.
Under SCR 20:1.7,
a lawyer may not represent one client whose interests are adverse to the
interests of another client unless both clients consent in writing.
However, further requirements state that the lawyer must reasonably
believe that his or her "relationship" with the client will not be
"adversely affected" by the representation of the other client. In this
case, the commencement of legal action against an individual who would
be considered a current client would be considered such an inherent
conflict of interest that you could not bring an action against that
individual. This inherent conflict is suggested within the comment to SCR
20:1.7, which states:
"Paragraph (a) prohibits representation of opposing parties in
litigation. Simultaneous representation of parties whose interests in
litigation may conflict, such as co-plaintiffs or co-defendants, is
governed by paragraph (b). An impermissible conflict may exist by reason
of substantial discrepancy in the parties' testimony, incompatibility in
positions in relation to an opposing party, or the fact that there are
substantially different possibilities of settlement of the claims or
liabilities in question."
Dean R. Dietrich, Marquette 1977,
of the Wausau firm of Ruder, Ware & Michler L.L.S.C., is a member of
the State Bar Professional Ethics Committee. |
If the circumstances reasonably suggest that the law firm is merely
holding the original will in trust for the individual but is not
providing any legal representation, the individual would be considered a
former client, and under most circumstances, the lawyer could commence
an action against that individual. The requirements of SCR
20:1.9 address instances of a conflict of interest with a former
client. An attorney may not represent one client whose interests are
materially adverse to the interests of a former client if the
representation involves a matter that is the same or substantially
related to the nature of the prior representation of the former client
unless the former client consents in writing. Here, if the individual
would be considered a former client, the attorney could bring an action
against the individual unless the action relates directly to the legal
representation that resulted in the preparation of the will for that
individual. If the nature of the action to be commenced on behalf of the
business client is unrelated to the preparation of the will (or the
assets) of the former client, it is likely that the attorney could
proceed with representing the business client in an action against the
individual.
The mere holding of the original will in the law firm's safe deposit
box does not automatically create or perpetuate a current client
relationship; however, the attorney must scrutinize the extent of
contact between the law firm and the individual to fully assess whether
a current client relationship exists. The decision as to whether the
individual is a current or former client will depend on a factual
analysis. However, exercise caution, since the determination will be
based on the individual's reasonable expectations and whether the
individual presumes that your firm is still his or her attorney.
To learn more...
Professional Ethics Committee opinions may be found online. In addition, Professional Ethics Committee
opinions are available in Wisconsin Ethics Opinions, published
by State Bar of Wisconsin CLE Books. Wisconsin Ethics Opinions
includes the complete text of all formal, informal, and memorandum
opinions issued by the Professional Ethics Committee since 1954,
including opinions that have been withdrawn. The book also includes the
full text of the Rules of Professional Conduct for Attorneys (SCR 20).
For more information or to order Wisconsin Ethics Opinions,
call (800) 728-7788 or visit WisBar.
Wisconsin Lawyer