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.