9 Trial Lawyer • Fall 2023 Trouble in paradise A couple of troubling new trends have come to light related to the defense of legal malpractice cases, often when the attorney failed to perform an admittedly basic task or provided incomplete advice. Attorney defendants have sought to justify errors by (1) arguing the representation was “limited” to a “set of tasks” or “discrete questions” and (2) blame the client. However, these defenses generally ignore the necessary requirements to limit the scope of representation under the Oregon Rules of Professional Conduct (ORPC) and the principles of comparative fault. Understanding what creates an attorney-client relationship, how it can expand, how to limit the scope, if that is your intent, and when a client’s actions can contribute to attorney malpractice — all can help facilitate better client relationships, achieve better results and avoid malpractice. Define the scope of representation As the adage goes, “in for a penny, in for a pound.” When a lawyer agrees to represent a client regarding a legal matter, they are fully responsible unless the lawyer (a) sets forth reasonable limitations under the circumstances and (b) the client gives informed consent to the limited scope of representation. See OPRC 1.2(b) (“A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.”). Unfortunately, several recent cases have highlighted how attorneys often fail to provide the necessary explanation to clients to limit the scope of representation, leading to negative results for clients and malpractice claims. These claims could have likely been avoided with proper care, understanding ORPC 1.2(b) (limited scope representation) and clear communication by the attorneys to their clients. These situations frequently arise when the attorneys (1) do not have an engagement agreement, (2) have a broad and ambiguous scope in an engagement letter, (3) have an outdated engagement letter, (4) field questions on the fly that are outside of the scope of the engagement or (5) take on additional items for clients without taking into consideration the full scope of any new issues. As natural problem-solvers, rather than staying within the original scope of engagement, setting forth a new, limited scope engagement or declining to provide advice altogether, because it may be outside of their general practice area, attorneys tend to dabble by answering these questions in a limited way in an effort to be helpful. But this can commonly lead to differing expectations regarding what the attorney is handling. “A lawyer-client relationship need not arise from an explicit contract but rather ‘may be inferred from the circumstances and conduct of the parties.’” Lahn v. Vaisbort, 276 Or App 468, 477 (2016) (quoting In re Wyllie, 331 Or 606, 615 (2001)). A subjective, uncommunicated intent or expectation of a client, accompanied by “evidence that the lawyer acted in a way that would induce a reasonable person in the client’s position to rely on the lawyer’s professional advice” can create an attorney-client relationship. See In re Weidner, 310 Or. 757, 768-70 (1990). If the attorney answers client questions and gives “limited advice” they must comply with ORPC 1.2(b) and receive “informed consent” from the client. In the above example, the attorney took on an estate matter for the client, failed to limit the scope of representation, and, therefore, is charged with fully advising the client. Failure to advise of potential disinheritance if the will has an in terrorem clause — or if it is unclear whether the will has one to craft a letter that avoids challenging anything — is material and necessary information for the client to make an informed decision. Where the attorney may look at the situSee Legal Questions p 10
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