Can an Initial Consultation Make an Attorney Liable?

A question that often arises in legal malpractice cases is whether an initial consultation with a potential client, with no written retainer agreement coming out of the consultation, can make an attorney liable to the potential client.

One point that appears clear is if an attorney learns in a consultation that the potential client has interests adverse to the attorney’s already existing client, the attorney has no duty to help the potential client.

In Flatt v. Sup. Ct., 9 Cal.4th 275, 885 P.2d 950 (Cal. 1994), the attorney learned that the potential client had a claim against his current client.  The attorney did not advise the potential client concerning deadlines to file and when the contemplated suit was found to be time barred, the potential client sued the consulting attorney for malpractice.

The California Supreme Court ruled unequivocally that in light of her duty to her existing client, the consulting attorney had no duty to advise the potential client concerning the time deadline.

A written, unambiguous turndown letter generally absolves the attorney of any ongoing duty to the potential client, even if the attorney stated during the conference that the attorney would represent the client. See, Hashemi v. Shack, 609 F.Supp. 391 (S.D.N.Y. 1984).

If the client simply drops off a matter without comment at the attorney’s office, the Court is likely to find no duty on the attorney’s part to do anything, if the attorney is not already representing the client in other matters. See Delta Equipment v. Royal Indemnity, 186 So.2d 454 (La. App. 1966).  On the other hand, if the attorney is already representing the client in other matters, the Court is likely to place a duty on the attorney to resolve the unexplained new matter. See, Rice v. Forrestier, 415 S.W.2d 711 (Tex. App. 1967).

Simply agreeing to investigate the claim further does not create an attorney/client relationship. Setzer v. Robinson, 57 Cal.2d 213,368 P.2d 124 (Cal. 1962).

On the other hand, if the attorney agrees to merely investigate the claim and later tells the client that if any other lawyers offer to represent her, she should tell them no, the matter of whether the attorney has assumed a duty will go to the jury. George v. Caton, 600 P.2d 822, 93 N.M. 370 (N.M. App. 1979).  Likewise, if the attorney agrees to investigate the case and then tells others he represents the client, the matter of whether the attorney has assumed a duty will go to the jury. Gardner v. Jacon, 148 A.D.2d 794, 588 N.Y.S.2d 377 (1989).

As a final matter, if the attorney provides legal advice (even as part of a turndown) and the client relies on the legal advice to the client’s detriment, , the matter of whether the attorney has assumed a duty will go to the jury. Landis v. Hunt, 80 Ohio App. 3d 662, 610 N.E.2d 554 (1992); Togstad v. Vesely Otto, 291 N.W.2d 686 (Minn. 1980).