Can You Hire A Lawyer Without a Written Agreement?
In some cases, Yes – but the answer isn’t quite that simple:
ATTORNEY CLIENT RELATIONSHIPS CAN BE CREATED BY IMPLIED AGREEMENT
An implied agreement is a legally-recognized contract that arises even when no written agreement exists, if the parties’ actions demonstrate that they intended (or, in some cases, believed) they had an agreement. Sometimes this situation is also referred to as an agreement “implied in fact.”
In the case of attorneys and clients, it’s legally possible to create an attorney-client relationship without either a written agreement or the payment of legal fees, if the other legal requirements are met. For that reason, the existence of an implied attorney-client relationship is always a “facts and circumstances” question–meaning there is no bright-line test or rule. Every situation must be analyzed and evaluated based on the presence or absence of certain factors.
WHAT FACTORS ARE USED TO DETERMINE IF AN IMPLIED ATTORNEY-CLIENT RELATIONSHIP EXISTS?
When deciding whether or not an implied attorney-client relationship exists, a court (or a lawyer evaluating the situation on your behalf) may consider each of the following factors:
- Did the attorney and the client actually intend to enter into an attorney-client relationship?
- This often needs to be proven using circumstantial evidence–evidence of the parties’ words and actions that suggest the answer rather than stating it directly
- Did the potential client consult the attorney in confidence, or disclose confidential information to the lawyer?
- For example, emails containing proprietary or confidential business information, or potentially incriminating information
- Did the potential client consult the lawyer in a professional capacity?
- This may be harder to prove, for example, if the client talked with a lawyer at a party, rather than at the lawyer’s office
- For example: did the client actually request (and receive) legal advice from the lawyer?
- How much contact did the lawyer and the client have, and what was the nature of their interactions?
- Had the lawyer represented this client in the past? And were those matters similar to the one in question?
- This is particularly telling where the parties’ history demonstrates a pattern of representation
- For example, if the lawyer reviewed contracts for the client about once a year, and this new matter also involves contract review
- Did the lawyer offer representation to the client?
- Either verbally or in writing
- Did the lawyer act in a way that indicates (s)he was representing the client?
- Did the client pay fees (or give other things of value) to the lawyer?
This list is not exhaustive – any other relevant facts may be considered also. In addition, mentioned above, it’s important to note that there is no “absolute threshold” or number of factors that guarantee an attorney-client relationship exists.
It can be very difficult to prove an implied attorney-client relationship. That’s why it’s always best to enter into a written attorney-client retainer or representation agreement.
If you believe a lawyer agreed to represent you – or if a lawyer did represent you – and you now have concerns about that representation for any reason, it’s important to contact an experienced attorney and obtain an evaluation of your legal rights.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.