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The attorney-client relationship is composed of many elements and has a complex of values and theoretical bases underpinning it. The relationship is based on contract, agency and fiduciary principles, but cannot solely be characterized as a contractual, agency or fiduciary relationship. In fact, the most appropriate response to the question "what is the nature of the attorney-client relationship" (as well as the question whether such a relationship exists in any given situation) is likely to be "why do you ask?"
Courts frequently refer to this complex of values in discussing the attorney-client relationship, and Missouri is no exception:
In general principle, the relationship of lawyer and client is contractual. . . . It is also a relation of agency, and its general contours are governed by the same rules. . . . It is, nevertheless, distinguished from other types of agency by its highly fiduciary quality and by the limit of its scope . . . .
Jarnagin v. Terry, 807 S.W.2d 190, 193-94 (Mo. App. 1991). In other cases, however, the courts will focus on a particular characterization of the relationship that is most relevant or appropriate to the issue at hand. See, e.g., Baker v. Whitaker, 887 S.W.2d 664, 669 (Mo. App. 1994) ("An agreement between an attorney and client should be construed under the same rules that apply to other contracts"); Resolution Trust Company v. Gibson, 829 F. Supp. 1121 (W.D. Mo. 1993) ("Under Missouri law, the attorney-client relationship is an agency relationship governed by the same law as that which applies to agency relationships generally"); Macke Laundry Service Limited Partnership v. Jetz Service Co., 931 S.W.2d 166 (Mo. App.1996) (The attorney-client relationship is one of agency.); Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92, 98 (Mo. App. 1992) ("Admittedly, an attorney hired by a client is . . . an agent with the normal fiduciary duties imposed by law and with specific ethical duties imposed as a condition of the privilege to practice law."); Williams v. Preman, 911 S.W.2d 288, 301 (Mo. App. 1995) ("The relation between attorney and client is fiduciary and binds the attorney to a scrupulous fidelity to the cause of the client which precludes the attorney from any personal advantage from the abuse of that reposed confidence. . . . As a fiduciary, an attorney owes his client the greatest degree of loyalty, good faith and faithfulness.); In re Howard, 912 S.W.2d 61 (Mo. banc 1995) ("The relation between attorney and client is highly fiduciary and of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith on attorney's part").
Each characterization brings with it certain rights, duties and responsibilities. In any case where the existence or nature of the relationship is seriously in issue, it is necessary to look to these background principles for guidance.
"A fundamental distinction is involved between clients, to whom lawyers owe many duties, and non-clients, to whom lawyers owe few duties. It therefore may be vital to know when someone is a client and when not." Restatement of the Law Governing Lawyers, Topic 1 Introductory Note (Proposed Final Draft No. 1, 1996). Generally, there is no question regarding whether an attorney-client relationship has been created. Where a client seeks out an attorney in his or her office, requests representation and agrees to pay a fee, and the attorney agrees to undertake that representation, the relationship has clearly been established. But frequently, one or more of these factors are missing, and the question to be addressed is whether, despite this, an attorney-client relationship exists.
The Model Rules do not directly address when an attorney-client relationship is created. In fact, the Scope Note to the Rules explicitly negates any role for the Rules in this regard. Paragraph 3 states, "for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists." The same paragraph does acknowledge that whether such a "relationship exists for any specific purpose can depend on the circumstances and may be a question of fact."
The Restatement addresses the issue in § 26 as follows:
Formation of the Client-Lawyer Relationship
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or should know that the person reasonably relies on the lawyer to provide the services; or
(2) a tribunal with power to do so appoints the lawyer to provide the services.
The Restatement recognizes that, while this is the general rule for establishment of the attorney-client relationship, aspects of that relationship can be created at different times in different manners. Comment to § 26. The greater the duty to the client that is being asserted, and the more likely recognition of the relationship will "compel a lawyer to provide onerous services," the less likely a full attorney-client relationship will be found. Restatement, Comment to § 26. Courts are loathe to impose fiduciary duties on attorneys where the lawyer has not agreed to enter into a relationship of that nature.
Missouri law on the subject was set out in Resolution Trust Company v. Gibson, 829 F. Supp. 1121, 1127 (W.D. Mo. 1993):
Under Missouri law, the attorney-client relationship is an agency relationship governed by the same law as that which applies to agency relationships generally. . . . An agency relationship results from ‘the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo.1953); Groh v. Shelton, 428 S.W.2d 911, 916 (Mo. App.1968); Dillard v. Rowland, 520 S.W.2d 81, 90 (Mo.App.1974). An agency relationship may be established by consent manifested in words and conduct. Groh, 428 S.W.2d at 916. Neither a contract nor an express appointment and acceptance is essential to the formation of an agency relationship. Id. Furthermore, in Missouri, "[t]he creation of the attorney- client relationship 'is sufficiently established when the advice and assistance of the attorney are sought and received in matters pertinent to his profession.' " Erickson v. Civic Plaza Nat. Bank of Kansas City, 422 S.W.2d 373, 378 (Mo.App.1967). See also State v. Longo, 789 S.W.2d 812, 815 (Mo.App.1990) (citing Erickson for the same proposition).
Where parties can prove that they "sought and received legal advice and assistance and that [the lawyer] intended to undertake to give such advice and assistance on their behalf . . . , the attorney-client relationship may be found to exist." Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 626 (Mo. banc 1995). However, "reliance alone upon the advice or conduct of a lawyer does not create an attorney-client relationship." Id., citing Ronald E. Mallin and Jeffrey M. Smith, Legal Malpractice §8.2, at 96 (3rd. ed. Supp. 1993). "It is the client's reasonable belief that an attorney is representing him" that provides the basis for recognizing the existence of the relationship. Longo, 789 S.W.2d at 816 (in the context of the attorney-client privilege).
In any case where the existence of an attorney-client relationship is in issue, it will be necessary to identify the nature of the duties and responsibilities that are at issue and to determine the existence of the relationship in that context. There is a tension between protecting legitimate interests of prospective clients, who are not in the best position to judge whether the relationship has been created, and the right of an attorney to freely choose whether to enter into such a relationship. Many courts now err on the side of the client where the lawyer could have clarified the matter and did not. It is therefore a good idea for an attorney who does not undertake to represent a potential client after an initial consultation (or what could be reasonably construed as one) to send a non-engagement letter to that individual. For further discussion of these issues, see Restatement, Comment and Reporter’s Note to § 26; ABA/BNA Lawyer’s Manual on Professional Conduct, 31:101-106.
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