8 Trial Lawyer • Fall 2023 By Kirc Emerson OTLA Guardian As trained problem solvers and issue spotters, attorneys gravitate to helping their clients with all sorts of issues. It’s likely part of the reason why many people became attorneys in the first place. But it is this desire to consistently step in and help that often creates unintended consequences and unconsidered risks for both attorney and client. When a client sends an email, it is generally the first instinct for an attorney to simply answer the questions, maybe performing a bit of research in the process and then move on with their day. Most, if not all, attorneys can likely relate to this scenario. Much of the time there is no need to give these instances a second thought. However, when the questions answered do not fall within the issues the client first came to the attorney for, this can lead to a potentially unintended expansion of the representation. Without defining what you are — and equally as important, what you are not — doing for the client as their attorney on any new or existing issue, it is easy for simple items to be missed and for clients to be harmed in the process. The client’s reasonable, subjective belief under the circumstances is key to determining whether an attorney-client relationship is formed. So, if an attorney is not careful, quickly answering questions from an existing (or potential) client with a bit of your legal knowledge can have far-reaching and unintended implications if something goes wrong. A helping hand Consider the following scenario. You take on a client who was in a motor vehicle accident with some serious injuries. You have been spending a significant amount of time working with the client on the case. One day the client comes in asking for some help with their parent’s probate estate. The client disagrees with how the estate is being handled by the personal representative, including the proposed distribution plan, and asks if you will help them get more information. Although trusts and estates are not within your normal practice area, you agree to draft a letter explaining your client’s issues with the estate, including their objections to how it is being handled and a request for information. You meet with the client, answer a handful of questions and tell them the letter should get the client the information they want. You spend a couple of hours in total, and the client is very appreciative. No new engagement letter is signed, and, if it goes any further, you plan to refer the client to a trust and estate attorney — but you do not tell the client at this point. Documents come in a few weeks later, you send them to the client and move on. Several months later, your client returns for a meeting on the personal injury case, upset and alleging that it is your fault that they have been disinherited. The will had a no contest clause and the letter you sent on behalf of the client challenged the distributions. You may think to yourself, I had no idea there was a no contest clause, either. I simply sent a letter that my client approved. But did you advise the client of the risks of sending the letter (i.e., potential disinheritance)? Did you ask for a copy of the will? Could the letter have been drafted without any language contesting the will and still achieve the client’s goals? Did you perform enough research to figure out the risks? Did you limit the scope of the representation? Did you get informed consent? What was intended as a kind gesture has likely turned into a malpractice case. Kirc Emerson When Legal questions result in expansion
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