Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

When I pointed out this morning that by Sean Hannity’s own description of his relationship to Trump fixer Michael Cohen, he was Cohen’s client, several commenters protested, including a lawyer or two. This suggests that many more were similarly confused, and it is no surprise. A disturbing number of lawyers fall into the trap of acquiring “accidental clients.” There are many ways this can happen, but the most insidious of them is this, which people like me constantly and repeatedly warn lawyers about, often to no avail.

A relative or a friend approaches you, a lawyer, at a party. He or she asks you a question about some legal issue, and you give an off-the-cuff answer. Because you are a lawyer, and because you gave advice, however vague, that individual accepts it as a free legal opinion, and also assumes that the conversation was confidential. Usually nothing happens. Sometimes, however, the friend or relation acts based on your advice. If the results turn out badly, he or she may sue for malpractice, and sometimes will win damages. In an infamous case that is still good law, an individual went to a medical malpractice specialist to engage him to sue a hospital. After describing the facts, the potential client was told, “You have no case,” and informed that the lawyer would not accept the representation. But the individual relied on that statement, and didn’t bring a suit until the statute of limitations had run. Then he learned, from another lawyer, that he did have a valid case, though one he could no longer pursue. The first lawyer was sued for malpractice, and the court found that indeed “You have no case” constituted legal advice, and the advice was relied upon, meaning that an attorney-client relationship had been formed.

Giving legal advice is what lawyers do. Nobody but lawyers are permitted to give legal advice, unless they say something like, “Remember, this is just my opinion, and I’m not a lawyer.” When lawyers give legal advice, and  someone accepts it, relies on it, and treats it as the legal advice it is, meaning that they assume that what the lawyer learned will be kept in confidence, BINGO, that’s a lawyer-client relationship. There have been cases where the lawyer even had an individual sign a document that said, “It is understood that I am not acting as X’s lawyer,”  and an attorney-client relationship was still deemed to have been formed. It is up to the lawyer to make certain that someone knows he or she isn’t a client, and the issue will be considered from the clients’ viewpoint, not the lawyer’s. Nor does it matter whether the client would call the relationship an attorney-client relationship. If the individual treats the relationship as a client would, and the lawyer has given him or her reason to do so, then he or she is a client. These principles exist to protect clients and their confidences. Lawyers are charged with being careful, because they should know their profession and its rules. Too many lawyers are not careful, however, including, not surprisingly, Michael Cohen.

Here again is Sean Hannity’s carefully parsed and crafted statement regarding his failure to state that he was a client of Michael Cohen to his Fox News audience, who should have been informed of his conflict of interest:

“Michael Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective. I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third party.”

Note that the statement is deceitful, because it never says, “I was never Michael Cohen’s client.”  That he never retained Cohen, received an invoice,  paid legal fees, or involved him in a matter between Hannity and a third party, individually or collectively, does not mean that he was not Cohen’s client.  That Hannity had discussions with the lawyer about legal questions and received his input and perspective while assuming that those conversations were confidential means that he was a client. He consulted a lawyer on a legal matter, received legal advice, relied upon it, and assumed that the lawyer’s duty of confidentiality to a client applied. A lawyer does not owe that duty to anyone else, other than a potential client (Rule 1.18) or a former client, but in the case of a potential client, all a lawyer can ethically do is hear the facts, and say, “Sorry, I can’t represent you.” He cannot give advice.

Here is an excellent overview of “accidental” representations.

31 Comments

Filed under Journalism & Media, Law & Law Enforcement, Professions

31 responses to “Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

  1. JutGory

    This is one reason why I never turn down a case without advising the person to get a second opinion.
    -Jut

    • Other Bill

      And advising them there is a statute of limitations which may or may not have already expired and doing all of the above in writing.

      And let’s hear it for the cagey litigants who lawyer shop in order to conflict out various firms in town.

  2. Michael

    Agree, and well said. But “relied on it” is an assumption, not clear from the statement or any information I have seen or heard.

  3. charlesgreen

    That makes a great deal of sense, thanks for the info.

    I believe what you say is also consistent with Philip Bump’s take on it in WaPo today, though I’d be curious to hear if you see a difference:

    https://www.washingtonpost.com/news/politics/wp/2018/04/17/yes-sean-hannity-was-a-legal-client-of-michael-cohens

    • Yes, I think Bump’s article is correct. It also has more information making it clear that Hannity knew he was a client, as I suspected.

      Bumps’a a little careless about the privilege/confidence distinction. Courts simply cannot get privileged information, which is what a client says or provides to a lawyer in order to get legal advice. A lot of what a client might say to a lawyer is not privileged, but confidential: information a lawyer learns in the course of the representation and which the client would not want disclosed. The fact that someone is a client is confidential, but not privileged. Confidential information can be acquired by a court, but it has to be done the right way.

  4. Greg

    “Too many lawyers are nor careful, however, including, not surprisingly, Michael Cohen.”

    Apparently, Cohen did understand the concept of accidental clients, though, because he named Hannity to the court as a client.

  5. Jack,
    Thanks for the useful information.
    Z.

  6. “He or she asks you a question about some legal issue, and you give an off-the-cuff answer.”

    Reminds me of a cartoon from one of THE greatest influences/sources of inspiration from my earlier-stage-of-development days (Mad Magazine).

    A doctor’s watering his lawn and his neighbor walks up and asks, “Doc, I got this terrible pain in my lower back.”

    The doctor: “I don’t give curbside advice, it’s unprofessional. If you’d like to arrange a consultation, call my office and make an appointment.”

    After his neighbor walked away disgruntled, he sees his neighbor across the street, a lawyer.

    He walks over and tells him what happened and asks, “what if I had given him advice and it turned out to be wrong; could he sue me?”

    The lawyer: “I don’t give curbside advice, it’s unprofessional. If you’d like to arrange a consultation, call my office and make an appointment.

    ”But while you’re here, I got this terrible pain in my lower back.”

    • John Billingsley

      Good one. I avoid telling anyone who doesn’t need to know that I’m a doctor and anyone who asks about a problem outside the office gets the same answer the neighbor above got or advised to see their own doctor. It’s easy to establish an accidental doctor-patient relationship and potentially end up on the wrong end of a malpractice suit.

      • “I avoid telling anyone who doesn’t need to know that I’m a doctor”

        Too bad JB; my lovely and long suffering wife, whom I wed in June of 2002, would LUV to discuss a nearly 16 year old pain she can’t get rid of…

        • dragin_dragon

          To be truthful, there’s a LOT I don’t tell my doctor. In part, because I’m afraid to find out what really happened.

        • John Billingsley

          My wife would advise her not to waste her time talking to me. She’s tried it for 45 years and it hasn’t helped her any.

      • dragin_dragon

        One of the first questions asked when someone finds out for the first time that I am a retired psychologist: “Are you analyzing me?” I virtually always answer with another question: “Are you paying me?”

  7. Alex

    As a non-lawyer I find that article on accidental clients fascinating. This kind of guidelines should be required for any occupation (*cough* software engineering *cough*) that wants to regard itself as a profession.

  8. Gamereg

    People should also know that paralegals and law office secretaries cannot give legal advice AT ALL, something I’ve encountered upon starting a paralegal career.

  9. dragin_dragon

    If Hannity was, in fact, a client, what does this say about the ethics of the judge, who violated privilege by revealing him as a client?

    • Maybe a lot. I have commissioned a guest post on this.

      • dragin_dragon

        Look forward to it.

      • Matthew B.

        I’m waiting for the post too. I simply do not understand why the judge would insist on this being in the public realm.

        I’m going that it was done to do damage politically.

      • Orin T

        Jack, you said: “The fact that someone is a client is confidential, but not privileged. Confidential information can be acquired by a court, but it has to be done the right way.” Yet, you have commissioned a guest post treating the matter of revealing as client as a violation of privilege. Does this mean that, as with so much in the law, it just depends? Or is the guest post going to argue that the court went about aquiring the information in the wrong way?

  10. You should probably worry, Jack. I consider you to be all of our accidental lawyer due to this blog. /s

  11. Clearly, Jack is correct. The accidental lawyer is a terrifying part of any attorney’s practice.

    Hannity failed to disclose his relationship with Cohen while criticizing the DOJ, the FBI, Comey, Mueller, the special prosecutions, as well as the federal government’s raids on Cohen’s offices. Ethical? Hardly. Subject to sanctions from Fox News? Sure. Prosecutable offenses? Absolutely not. Justifying outing him in federal court in a motion to quash the search warrant on Cohen’s law offices for the NBC tapes, Daniels’ and others’
    payouts? Mindbogglingly scary.

    Let’s assume that Hannity was a client. His communications with Cohen would have or should have been privileged unless the two were engaged in a fraud or the commission of a crime. There is absolutely no evidence that Hannity, bozo that he is, did anything remotely illegal. So, what, if anything, does Hannity’s failure to disclose his relationship with Cohen on his many Fox News commentary shows criticizing the DOJ, the FBI, Comey, Mueller, the special prosecutions, as well as the federal government’s raids on Cohen’s offices, does that have to do with the various investigations surrounding Trump?

    Answer me these:

    Is there some allegation that Hannity has conspired to hose Stormy Daniels and the other adult entertainers settling claims with Trump (in what appear to purely consensual odd sexual dalliances between consenting adults, and not sexual harassment/assaults) before he was a candidate? Did Hannity pay off Trump’s settlements with Daniels and the others to get around campaign laws? Did Hannity consult with Putin to alter the 2016 elections? Did Hannity have anything to do with Comey’s decision to recommend whether charges should be filed against Hillary Clinton for her email shenanigans? How about Facebook? Did Hannity engage a bunch of Moscuvite and Ukrainian hackers to set up fake Facebook accounts/pages to push anti-Clinton/pro-Trump Facebook feeds? Did Hannity do anything illegal in relation to Trump, Clinton, Daniels (and other ladies similarly situated)? Did he violate federal or state campaign finance laws?

    If the answer to all of the those questions is, “No”, then why in the name of all that is holy was Cohen compelled to identify him as a client in a federal court? Somebody please explain that to me. Please. I implore you.

    I ask these questions because the implication is truly disturbing: Hannity (bozo that he is) has been extremely critical of Mueller, Comey, the upper echelons of the FBI, DOJ, the special prosecutor, etc. If there is no real connection between Hannity and Cohen other than the “accidental attorney-client” relationship*, then compelling Cohen to reveal Hannity’s identity (apparently to horrified gasps and gnashing of teeth from some reports of the hearing) was retribution against Hannity by the powers of the federal government branches to stifle further criticism of Mueller, Comey, DOJ, FBI, the special prosecutor. It sends the message: “You criticize us at your peril” and/or “we will make you pay”. Alan Dershowitz is absolutely correct: The ACLU should be all over this, if not protecting Hannity individually, but to preserve the sanctity of the attorney-client privilege, as well as other long-recognized privileges. If this search warrant and the resulting outing of clients in open court are legitimate and legal, then we are edging a whole lot faster toward a Soviet/stasi style police state, the Constitution and the Bill of Rights be damned.

    jvb

    *which is really an equitable theory to protect the unsuspecting from relying on bad/incomplete/incompetent advice from an attorney where there was a reasonable or justifiable basis for reliance on the ‘advice’ which proximately caused harm to the unsuspecting. As an example, a parent on my son’s swim team keeps pumping me for free legal advice about a probate matter in another state where I am not licensed. I continually preface everything I say to said parent” “I am not licensed in that state, I do not do that area of law in this state, and I am not your lawyer. So, having said that, how is your child’s freestyle coming along?” I sure hope that is sufficient. Otherwise, I am toast.

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