Legal Malpractice May Come from an Implied Attorney
Attorney client relationship may be implied. The North Dakota court
has weighed in with yet another case holding that an attorney may find him/her
self involved as an attorney without knowing it! The Court reprised that
"It is not necessary that there be an express contract or payment of fees; an
attorney-client relationship may be implied from the conduct of the parties. See
Stormon v. Weiss, 65 N.W.2d 475, 520 (N.D. 1954); Robertson, 536 N.E.2d at 348;
Keegan, 519 N.W.2d at 611." That is the majority rule in the United States.
In the case of
Thomas, 2001 ND 110, 628 N.W.2d 325, the court did it again --- found
an implied attorney-client relationship.
In the 2003 case of Disciplinary
Board v. Giese, 2003 ND 82. the North Dakota court did it again ---
found an implied attorney-client relationship. This time they laid out a
good summary of the law not only for North Dakota, but in words that are good
for most states, as follows.
[¶17] In Disciplinary Bd. v. McKechnie, 2003 ND 22, ¶ 19,
656 N.W.2d 661 (quoting ABA/BNA Lawyers' Manual on Professional Conduct, at
31:101 (2002)), we said, "the lawyer-client relationship begins when the
client acknowledges the lawyer's capacity to act in his behalf and the lawyer
agrees to act for the benefit and under the control of the client." The
existence of an attorney-client relationship does not depend on an express
contract or the payment of fees, and may be implied from the parties' conduct.
McKechnie, at ¶ 19. An attorney-client relationship is established when a
party seeks and receives advice and assistance from an attorney on matters
pertinent to the legal profession. Matter of Petrie, 742 P.2d 796, 800 (Ariz.
1987). See 7 Am. Jur. 2d Attorneys at Law § 136 (1997). The existence of an
attorney-client relationship turns largely on the client's subjective belief
it exists and looks to the nature of the work performed and to the
circumstances under which confidences are divulged. Petrie, at 800-01;
Louisiana State Bar Ass'n v. Bosworth, 481 So.2d 567, 571 (La. 1986); Matter
of McGlothlen, 663 P.2d 1330, 1334 (Wash. 1983). . . . . The existence of an
attorney-client relationship is a question of fact. Moen v. Thomas, 2001 ND
110, ¶ 13, 628 N.W.2d 325.
Here is a similar Texas line of cases. A reasonable attorney knows there are
times when a the relationship may be implied or expected by the person to whom
the attorney is talking. Cf., Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265-66
(Tex. App.Corpus Christi 1991, writ denied) ("An agreement to form an
attorney-client relationship may be implied from the conduct of the parties. . .
. the relationship does not depend upon the payment of a fee, but may exist as a
result of rendering services gratuitously."); Parker v. Carnahan, 772 S.W.2d
151, 157 (Tex. App.Texarkana 1989, writ denied); Parker v. Carnahan, 772 S.W.2d
151, 157 (Tex. App.Texarkana 1989, writ denied);("An attorney-client
relationship may be implied from the conduct of the parties .
Privity is not a defense for failure to prevent misunderstanding of
existence of lawyer being attorney for the claimed client. When a
non-client sues an attorney for the legal malpractice of negligently failing to
advise the non-client that the attorney is not representing the non-client, when
the circumstances would lead the non-client to believe the attorney has
undertaken the representation. A duty to the non-client does exist. See, e.g.,
Cantu v. Butron, 921 S.W.2d 344, 351 (Tex. App.Corpus Christi 1996, writ
denied); Byrd v. Woodruff, 891 S.W.2d 689, 700 (Tex. App.Dallas 1994, writ
denied); Kotzur v. Kelly, 791 S.W.2d 254, 257-58 (Tex. App.Corpus Christi 1990,
no writ); Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.Texarkana 1989, writ
denied);(" . . . further, an attorney may be held negligent when he fails to
advise a party that he is not representing them on a case when the circumstances
lead the party to believe that the attorney is representing them.").
Privity is Not Always Required for Duty to Arise Not to Negligently
Misrepresent. Generally, a person who is not in privity with an attorney
cannot sue for the attorney's negligence. Cf., McCamish, Martin, Brown, &
Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 792 (Tex. 1999). But there
is a duty that runs to non-clients, and thus, an attorney may be subject to a
negligent misrepresentation claim even if there is no legal malpractice claim.
Therefore, because of the duty that runs to non-clients, it is possible for a
non-client to have a claim for negligent misrepresentation against an attorney
even if he/she may lack standing to sue otherwise for the attorney's negligent
acts in or out or court.. McCamish, Martin, Brown, & Loeffler v. F.E. Appling
Interests, 991 S.W.2d 787, 792 (Tex. 1999). The Texas Supreme Court limits the
duty to non-clients to situations in which the attorney is aware of the
non-client and intends for the non-client to rely on the information provided.
Id. at 794 (cause of action is available only when information is transferred by
an attorney to a known party for a known purpose) This duty to non-clients is
similar to the duty of accountants giving financial information to their client
which the accountant knows will be given to third party, but is not limited to
The Moen case also has a concurring opinion that lays out some of this basic
sources of law for researchers on when an attorney may be liable for legal
malpractice to a non-client. The concurring opinion does not go as far as
the Texas McCamish case.
When does the Statute of Limitations Run?
Norkot Manufacturing, Inc., 002 ND 175 is a good discussion of when
the statute of limitations begins to run on a legal malpractice case --- when
there is both (a) a problem of discovery and a(2) problem of when damages
or injury occurs. This is the second time that this case has been before the
North Dakota Supreme Court. All the parties were represented by experienced
legal malpractice counsel, and the case considers all the aspects involved..
The court starts by stating that for a cause of action for an attorney's legal
malpractice, there must be damages to the client proximately caused by the
attorney's breach of a duty to the client; the statute of limitations does not
begin to run until the client has incurred some damages from the alleged
malpractice; and the statute of limitations is tolled until the client knows, or
with reasonable diligence should know, of the injury, its cause, and the
defendant attorney's possible negligence. The court then splits on the
question of defining those times that trigger the statute. If you have a
problem like this, read this case.