Avoiding the Unintended Client

adults talking in social setting

Handling the ramifications of and sidestepping situations arising from an unintended client is an ethical obligation. Attorneys are often presented with questions from friends, family members, business acquaintances, or even strangers through firm websites and social media. However, these raise a real risk. Sometimes in these settings, the attorney will fall into an unintended attorney-client relationship.

In State ex rel. Okla. Bar Ass’n v. Bailey, 2023 OK 34, ¶186, 530 P.3d 24, 101, the Oklahoma Supreme Court has held an attorney-client relationship is formed when: “its obligations ‘can be established by a reasonable subjective belief of the client,’ and the contract can be ‘implied from the conduct of the parties.’” In Bailey, id., the Court found “[w]hen respondent orally agreed to help her regain her property with her reasonable expectation that he would do so as her lawyer, that ‘just something I agreed to do’ became a part of the attorney-client relationship and its performance measured by the Rules of Professional Conduct.”

Picture a setting where an attorney posts a video on social media explaining the legal aspects of a current event. Someone comments on the post with a personal question. The attorney responds with some general information, but neither issues a disclaimer that this is not legal advice nor suggests the commenter contact the attorney to discuss the question in detail. The commenter then uses the information provided and relies on it to act. Another instance could be that an attorney is at a social event, like a church gathering or school function, and another event attendee walks up and interacts with the attorney. During their conversation, the other attendee asks the attorney for an opinion on a situation the person is going through. The attorney offers an assessment, upon which the person acts. So, can either the social media commenter or the fellow event attendee bring a legal malpractice action? Possibly.

OAMIC has had claims in which an allegedly unintended attorney-client relationship was asserted, and litigation has ensued. In one, the situation involved an attorney was asked at a social event, “Do you think I need to attend a court hearing in this setting?” The attorney replied, “I don’t think so, but I could do some research on the issue.” The person relied on the first part of that sentence, and then sued the attorney when it turned out he should have attended the hearing to protect his rights in the matter.

How Do You Avoid an Unintended Client?

  1. Do not offer specific legal advice without a conflicts check and a formal engagement with the client. In social settings or in website and social media interaction, the risk of an unintended client can easily occur due to the ability to easily respond, leaving an impression that an attorney-client relationship has been established.
  2. Do not permit non-clients to provide boundless information about their situation without running a conflicts check. If you do not limit the information from the beginning, several issues can arise, such as conflict of interest and ethical obligations of protecting information given by a prospective client.
  3. Do not offer unsolicited legal advice. Should a lawsuit arise, this will become a fact question for the jury.
  4. Clarify your role and state you are not their attorney. Also, tell them that you are not giving them legal advice. If necessary, follow up in writing.
  5. Incorporate disclaimers on your firm website, social media accounts, and posts. While the disclaimer may not be dispositive of whether an attorney-client relationship was established, it will be written documentation that a court or jury will consider in determining whether the person should or should not have had a reasonable belief.

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