Ethical Problems with Giving Free Legal Advice

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Friday, October 7th, 2016
Ethical Problems with Giving Free Legal Advice

Q: Hey, are you really a lawyer? Can I ask you a couple of questions?

How many times have we been approached by someone with those questions? Is this person now a client or just a minor irritation? Do we have ethical obligations in that situation? What are they? Are we going to get sued?1 Whether it is for a friend or for a stranger, giving someone off-the-cuff advice can have consequences.

Q: Is there even an attorney client relationship?

The Texas Disciplinary Rule of Professional Conduct (The Rules) 1.182 and its comments define when an attorney-client relationship exists and outline the resulting duties. “A person who consults with a lawyer about the possibility of forming a cli­ent lawyer relationship with respect to a matter is a prospective client.” Rule 1.18(a). Duties are owed whether it is a prospective or an actual client.

The legal relationship of attorney and client is purely contractual. It may be implied from the conduct of the parties if the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship. Parker v. Carnahan, 772 S. W. 2d 151, 156 (Tex.App.—Texarkana 1989, writ denied). An attorney can be negligent in failing to advise that he is not representing someone where the circumstances lead that party to believe that the attorney is representing them. In the Parker case, a client’s wife signed documents in a lawyer’s office and therefore assumed that he was representing her and sued him. Parker v. Carnahan at p. 157. That lawsuit might have been avoided if the attorney had specifically told his client’s wife that he did not represent her.

If there is a written agreement specifying that the parties entered into a business deal rather than an attorney-client relationship, it is not dispositive. Rosas v. Commission for Lawyer Discipline, 335 S. W. 3d 311, 317 (Tex.App.—San Antonio 2010, no pet.). Mr. Rosas, the attorney in the above case, had such an agreement yet an attorney-client relationship was found due to the actions he had taken—filing documents and scheduling a hearing.

Whether an attorney-client relationship is created or not is based on objective standards of what the parties said and did and not on their alleged subjective states of mind. Actions and words are examined, as well as the circumstances at the time in question. Terrell v. State, 891 S. W. 2d 307, 313–314 (Tex.App.—El Paso 1994, pet. ref’d). The relationship of attorney and client is not dependent upon the payment of a fee, nor upon the execution of a formal contract. E. F. Hutton v. Brown, 305 F. Supp. 371, 388 (S.D. Tex. 1969).

An implied attorney-client relationship can be established by a request for representation, an engagement or confidentiality agreement, an expression of a belief by the purported client that the individual was acting as his attorney, an agreement or assurances that conversations were privileged or confidential, and/or the provision of legal advice. In re Baytown Nissan, 451 S. W. 3d 140 (Tex.App.—Houston [1st Dist.] 2014.

A: If no legal advice was ever given that indicates there was no attorney-client relationship.

Kiger v. Balestri, 376 S. W. 3d 287, 295 (Tex.App.—Dallas 2012, pet. denied). A client may have more than one lawyer, so the fact that the client already has a lawyer does not defeat the existence of an attorney-client relationship with another attorney. For example, an attorney-client relationship might be established by a friend asking you for a second opinion about his case.

Q: What are the dangers of establishing an attorney-client relationship?

There is a huge amount of litigation on the issue of whether an attorney-client relationship exists. These cases arise in the context of an attorney defending against: a grievance, a legal malpractice claim, an ineffective assistance of counsel writ, and deceptive trade actions. It takes very little for an attorney who gives legal advice to become a defendant. Sometimes the lawyer wins these cases, and sometimes it is the individual who believes he is a client.

Q: What duties arise from an attorney-client relationship?

Once the attorney-client relationship is established, a lawyer owes numerous duties to the client. Ethically the most important are these:

  • To use utmost good faith in dealings with the client;
  • To maintain the confidences of the client; and
  • To use reasonable care in rendering professional services to the client.3

A) Attorney-client privilege

Any client may refuse to allow disclosure of confidential communications. Tex. R. Crim. Evid. 503 (b) A communication is confidential if it is not intended to be disclosed. This privilege belongs to the client, and only the client can waive it. Carmona v. State, 947 S. W. 2d 661, 663 (Tex.App.—Austin 1997, no pet.)

Rule 1.054 protects the client from disclosure by the attorney of both privileged and unprivileged information. This includes all information relating to a client, or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. The general rule is that an attorney may not reveal this information. This rule extends to former clients. Rule 1.05 (a), (b). Breaching confidentiality can and has resulted in litigation.

A: Narrow exceptions to the attorney-client privilege

There is an exception to the attorney-client privilege if the services of the lawyer were sought or obtained to enable anyone to commit or plan to commit a crime or fraud. Tex. R. Crim. Evid. 503 (d)(1) “[A] continuing or future crime is not enough; the attorney’s services must be sought or obtained to enable or aid the commission of the crime.” Henderson v. State, 962 S. W. 2d 544, 552 (Tex.Crim.App. 1997).

The lawyer may (but is not required to) reveal confidential information to the detriment of the client when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a fraudulent or criminal act. Of course, the lawyer may also reveal confidential information to defend himself in a dispute with the client, or when the client consents, or when it is necessary to do so to represent the client (implied authorization), or to clean up a criminal or fraudulent act the client used the lawyer’s services to commit. Rule 1.05(c), (1–8) (d) (1–2).

The lawyer shall reveal confidential information when that confidential information clearly establishes that the client is likely to commit a criminal or fraudulent act that is likely to result in death or serious bodily harm to a person—but only to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. The Rule 1.05(e).

The comment to this rule reminds us how extremely limited that duty is. This is because the proper functioning of the legal system depends upon the preservation of the attorney-client priv­i­lege. There is a balancing test: that of potential victims against the client’s need to be truthful with the attorney so that the attorney can counsel against the wrongful action. “When the threatened injury is grave the lawyer’s interest in preventing the harm may be more compelling than the interest in preserving the confidentiality of the information.” Henderson v. State, 962 S. W. 2d 544, 554–555 (Tex.Crim.App. 1997). The Henderson court reminds us that the ethical rules require maintaining confidentiality as to past activities.

The grave circumstances requiring disclosure detailed in Henderson are defined by example: a kidnap victim who is tied up, still alive, but will die unless the location is revealed quickly—and the lawyer and the client are the only ones with that information. Henderson at p. 556. The comment to the Model Rules of Professional Conduct gives an example of a client who has discharged toxic waste into the town’s water supply, and the lawyer’s disclosure is necessary to prevent a present and substantial risk that those who drink the water will contract a life-threatening and debilitating disease.5 Texas adopted the Model Rules in 1989.

Disclosing a statement given by a client to the attorney in confidence is deceitful and fraudulent. It also has been treated as a tortuous breach of duty. Damages for mental suffering can be appropriate because this is an invasion of privacy. Perez v. Kirk & Carrigan, 822 S. W. 2d 261, 266–267 (Tex.App.—Corpus Christi 1991, pet. denied).

A: Attorney-client privilege not applicable

Attorneys may release information and even testify against the client when no communication is involved—i.e., when the information is the result of the attorney’s observations. For example, information may be disclosed as to the following: the client’s location, the fact that the lawyer did not forge the client’s name on a document or that that the attorney was not the client’s bondsman, the attorney’s presence during a lineup, and information about the preparation of affidavits. An attorney’s communication to the client of a trial setting is not subject to the attorney-client privilege. Austin v. State, 934 S. W. 2d 672 (Tex.Crim.App. 1996).

B) Conflict of interest

The ethical duty to avoid conflicts of interest with one’s client is most commonly breached in criminal law by the representation of co-defendants.

Rule 1.06(a)6 dictates that a lawyer shall not represent opposing parties to the same litigation on a substantially related matter in which interests are materially and directly adverse. The comment to this rule explains that loyalty is an essential element in the lawyer’s relationship to the client. “Directly adverse” is defined as “if the lawyer’s independent judgment on behalf of a client or the lawyer’s ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer’s responsibilities to the other client.” State Bar of Texas v. Dolenz, 3 S.W.3d 260, 270–272 (Tex.App.—Dallas 1999, no pet.).

Client’s consent as an affirmative defense to a conflict

Of course a client can waive the conflict and consent to his attorney’s representation. That can provide a defense to the attorney in grievance proceedings or in defending against a writ. But this defense puts the burden on the attorney to prove: that the attorney reasonably believed the representation of each client (usually co-defendants) would not be materially affected, that there was full disclosure of all relevant facts to each client, and that the client(s) consented. It is a heavy burden the attorney bears to demonstrate that all relevant facts relating to the conflict were disclosed and explained to the client. An attorney breaches an ethical duty to his clients when he represents co-defendants and fails to advise each of them of even a potential conflict of interest. Ex parte Acosta, 672 S. W. 2d 470 (Tex.Crim.App. 1984) In the Acosta case the conflict did not become apparent until the middle of a contested hearing. The attorney was faulted for representing co-defendants and not advising them that a conflict might arise in the future.

C) Competent advice

Rule 2.01 states that “[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

A client is entitled to straightforward advice expressing the lawyer’s honest assessment . . . [A] lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.7

This means that one has to put one’s “people pleasing” traits aside when giving advice and tell the potential client things like “I understand the complainant shot off his mouth and that you felt he needed to be hit, but ‘needing to be hit’ does not actually provide a legal defense.” This can be hard to do in a social setting.

D) Neglect

Rule 1.018 provides that a lawyer shall not accept or continue employment in a legal matter which the lawyer either knows or should know is beyond that lawyer’s competence (un­less the lawyer gets help). Furthermore, attorneys shall not ne­glect a legal matter entrusted to them or fail to carry out obligations owed to the client. Rule 1.15(d)9 provides that upon termination of representation that the lawyer shall continue to protect the client’s interests.

Once an attorney-client relationship is established, an at­tor­ney cannot neglect his client’s defense by failing to give advice upon request, failing to appear for hearings, or failing to represent the client. Hawkins v. Commission for Lawyer Discipline, 988 S.W.2d 927, 937 (Tex.App.—El Paso 1999, pet. denied). Mr. Hawkins was an attorney who did not believe that he represented the client in question. He was a probate lawyer who was court-appointed on a criminal case and believed he was required to with­draw because he was not competent to handle the case. Unfortunately, he chose to quit working on the case once his motion to withdraw was denied by the trial court. He was also grieved and disciplined.

Each attorney is held to the standard of care that would be exercised by a reasonably prudent attorney—an objective ex­ercise of professional judgment, not a subjective belief that his acts are in good faith. If an attorney’s decision is that which a rea­sonably prudent attorney could make in the same or similar circumstances, there is no negligence even if an undesirable result occurs.

E) Fees

Rule 1.04 (a) provides: “A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a reasonable lawyer could not form a reasonable belief that the fee is reasonable.”

F) Soliciting employment

Disbarment of an attorney for soliciting employment is not an abuse of discretion even if it is an isolated act. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994)

Conclusion

In a moment of weakness you tell one of your buddies from the gym he just might have a defense to that DWI case he picked up Christmas Eve. Maybe you go on and suggest that the compelled warrantless blood draw probably should get thrown out. If you actually give him advice, he might believe that you represent him. It is possible that the more advice given, the firmer that belief. Certain questions to ask yourself: Should you tell him that you do not represent him? Are you required to keep his secrets now? Can you still represent someone whose interests are adverse to his? Do you have a duty to make sure that you give him good advice and that you have all of the facts necessary to accomplish that? Will he expect you to show up to court? These might be questions to consider. Me, I tell people that I am just there to repair the copier.

Notes

1. The point of this article is to avoid a lawsuit that none of us can afford, not to win a lawsuit.

2. Duties to Prospective Clients.

3. Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex.App.—Corpus Christi 1994, no writ.) ; Rule 1.18.

4. Confidentiality of Information.

5. Model Rules of Professional Conduct Comment on Rule 1.6 Confidentiality of Information.

6. Conflict of Interest: General Rule.

7. Comment to Texas Disciplinary Rule 2.01.

8. Competent and Diligent Representation.

9. Declining or Terminating Representation.