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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

An awful lot of law is being made these days under the heading, "who is the lawyer's client." I am not sure if this is a good or bad thing. I am just here to report on the phenomenon and think a little bit about what it says about the present state of the law of lawyering.

Atomic physics used to be easy. Atoms contained electrons and protons and neutrons, and it was not hard for the physicist to tell which particles were which. The law of lawyering used to be easy, too. It distinguished sharply between lawyers' duties to clients and to nonclients, and it relied on relatively straightforward tests to identify the clients. True, lawyers owed somewhat different duties to different sorts of clients. For example, prosecutors could choose for themselves the ends to be sought in representing the people, while private lawyers were expected to defer to their clients' wishes. And a few sorts of nonclients, such as beneficiaries under a negligently drafted will, were given a right to sue lawyers for malpractice, which other non-clients lacked. Still, even without a score card, it was easy enough for lawyers and judges to tell the clients from the nonclients, and having done so, to know just what duties a lawyer owed to the parties at hand. That was then.

Nowadays, just as physics has discovered neutrinos and gluons, so the law is recognizing various types of partial clients, that is, parties who enjoy some of the traditional rights of clienthood, but not others. These new legal particles include prospective clients, derivative or quasi-clients, nonclients who nonetheless stand in special confidential relationships with a lawyer, and secondary as opposed to primary clients. These new particles are turning what once seemed like a sharp dichotomy between clients and nonclients into something that looks much more like a continuum, a gradual scale.

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