PROFESSIONAL LIABILITY

Beware the Cocktail Party ClientCasual legal advice dispensed without reflection can lead to malpractice claim

In a New Jersey case. a lawfirm that had no contact with theplaintiffs didn't win the malprac­tice suit against it until appeal. Theplaintiffs had gone to a lawyer, whowent to the defendant medical mal­practice firm for advice on a wrong­ful birth cause of action.

On appeal, the New Jersey ap­pellate court found no attorney­client relationship. The court stat­ed that the attorney had not asked

for an expert consultation butinstead had inquired wheth-

er the firm was interestedin taking the case. Pocan­ik u. Cillo, 543 A. 2d 987(N.J. Super. Ct. App. Div.1988).

There are some sit­uations in which no at­torney-client relation­ship has attached butthe information learned

from your friend is privi-leged. Therefore, you are duty

bound not to disclose thatconfidence, even if you de­cide not to represent that

person.

Advise, With LimitationsClearly, as a lawyer, you have

to be more careful than a non­lawyer in dispensing legal advice.In particular, if you are a transac­tional lawyer, don't give litigationadvice. If you try cases, don't givetax advice. Instead of answeringyour friend's questions, you maywant to refer him to someone whohas expertise.

Don't let your sympathyfor an acquaintance with littlemoney to pay for a lawyermake you more prone to offeroff-the-cuff advice. There is no"Gp.od Samaritan" rule for law­

yers",If you volunteer negligent ad­vice, you are liable for it. And inthis particular area of potential lia­bility, be assured there are nopoints for helping out.

As one of my colleagues statedin a risk management seminar:

Please do not do involuntarypro bono work. Make a consciouschoice as to whom you will be rep­resenting and what you will bedoing in the course of that repre­sentation. •

As one case stated, "Whether acontract employing an attorney isexpressed or implied, some indica­tion that the advice and assistanceof the attorney was sought and re­ceived is integral to the creation ofthe attorney-client relationship."Carstensen v. Chrisland Corp., 442S.W.2d 660 (1994), citing Nicholson

v. Shockey, 64 S.E.2d 813 (1951).Further, it is equally clear that

the relationship can be createdeven if the client does not sign awritten agreement and does not paya fee. These activities, of course, areindications that there is an attor­ney-client relationship. Also, justlike in any other contractual situa­tion, the intent of the parties is arelevant inquiry.

Generally, courts have found

no attorney-client relationship insituations where contacts with the"wannabe client" are brief and fleet­ing. For instance, in Farmer v. MountVernon Realty Inc., 983 F.2d 298(1993), one of the plaintiffs allegedshe had visited the defendant lawfirm and an unidentified attorneytold her the firm would representher. The trial court granted sum­mary judgment for the law firm,and the District of Columbia Cir­cuit U.S. Court of Appeals affirmed.

There is no Good Samaritan rulefor lawyers. If you volunteer negligentadvice, you are liable for it.

BY PAMELA A. BRESNAHAN

"What do you think?" Withthose few words, legal advice maybe innocently sought by a friend ata party or the neighbor across thestreet. Yet your answer could bringmore discomfort than eating toomany meatballs or a fight over bor­rowed power tools.

Casual advice givenby a layperson hasno legal ramifica­tions. However,the same advicegiven by a lawyermay give rise tothe first elementnecessary to es­tablish a claim forlegal malpractice­an attorney-client rela­tionship.

Riskier BusinessAlthough there are no statis­

tics on the subject that this authorcould find, anecdotal evidenceseems to suggest that advice giveninformally leads to more malprac­tice claims than advice that is givenafter an engagement agreement issigned.

Putting the terms of the repre­sentation in writing gives you moretime to reflect about whether torepresent the client and, if so, whatspecific tasks you are competentand prepared to undertake for him.

What criteria should you havein mind in assessing whether togive informal advice to your cock­tail party friend? Whatdo courts look at in de­termining whether alawyer has turned intoa particular person'slawyer?

Most cases and commentariesanalyzing the attorney-client rela­tionship state that there must besome understanding between law­yer and client that the lawyer isgoing to give legal advice.

Pamela A. Bresnahan is a part­ner at Vorys, Sater, Seymour andPease in Washington, D.C. She isthe immediate-past chair of the ABAStanding Committee on Lawyers'Professional Liability.

80 ABAJOURNAL / SEPTEMBER 1999 G~HIC BY JEff OIQNI5E