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Hofstra Law Review

Article Title

Accidental Clients

Authors

Susan R. Martyn

Abstract

Most of the time, lawyers represent clients. But lawyers can be consulted and paid, but not serve as lawyers for clients, for example when they are sought out as friends, escrow agents, corporate officers or expert witnesses. The law governing lawyers recognizes the significance of the client-lawyer relationship by imposing fiduciary duties on lawyers who undertake a client representation. These duties, the "4 C's," include communication, competence, confidentiality, and conflict of interest resolution. A wide variety of legal remedies for breach of the 4 C's, including malpractice, fee forfeiture, disqualification, constructive trust, and professional discipline also belong primarily to clients.

When lawyers do not represent clients, these obligations and remedies recede considerably, and other aspects of the client-lawyer relationship, such as the attorney-client privilege, do not attach. And lawyers who represent clients do assume limited but important duties to certain third persons and the courts, obligations that can conflict with client loyalty. For example, lawyers have affirmative obligations not to assist client crimes and frauds and on occasion, to disclose client confidences to prevent them. Lawyers also must be able to identify whether opposing parties or witnesses are represented or unrepresented persons to avoid prohibited ex parte contact.

In most situations, lawyers know their clients. But increasingly, the law governing lawyers has identified "accidental" clients: those a lawyer had no intention of representing, and may not even have been aware existed. This article considers the scope and extent of these legally recognized client-lawyer relationships, many of which can be created "accidentally" from the lawyer's point of view. Some may seem obvious; others have surprised even the most knowledgeable lawyers. With apologies to David Letterman and Anne Tyler, this article catalogues the "Top Ten List" of "Accidental Clients."

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