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June 28, 2018

Confirming When Representation Begins Matters

by contributor
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handshakeA recent decision by Division III of the Washington Court of Appeals illustrates the importance of confirming whether or not you have taken on a client at an initial meeting.

Fechner v. Volyn, ___ Wn. App. ___, 418 P.3d 120, 2018 WL 2307703 (May 22, 2018), was painted against the backdrop of a medical malpractice case. The plaintiff was the personal representative of her late husband’s estate. She believed that her husband had died as a result of being prescribed inappropriate medications. The plaintiff contended she first consulted the defendant lawyer in October 2011 about pursuing a medical malpractice claim against the doctor involved and that the lawyer had agreed orally at that time to take on her case. The lawyer, by contrast, argued that he did not begin to represent the plaintiff until August 2012 when she signed a written authorization for him to investigate the claim. The significance of the two dates is that the statute of limitation on the medical malpractice claim ran in the meantime.

In the subsequent legal malpractice case, the plaintiff argued that the limitation period had expired while the defendant lawyer was representing her. The lawyer countered that it had run before August 2012 and, accordingly, he was not liable for malpractice. In the legal malpractice case, the trial court granted summary judgment to the lawyer. On appeal, Division III found that a fact issue on when the representation began precluded summary judgment. The Court of Appeals, therefore, reversed and remanded.

In doing so, the Court of Appeals noted that a written agreement does not necessarily mark the beginning of an attorney-client relationship if the evidence — including the client’s reasonable belief — indicates that it began earlier. The Court of Appeals concluded that the plaintiff’s testimony about the October 2011 consultation created a fact issue for jury resolution on when the attorney-client relationship began.

Fechner serves as an important reminder that if a lawyer meets with a potential client and does not take on the matter involved, prudent risk management practice is to confirm that in writing to the potential client. Under the controlling standard that Fechner identified (relying primarily on Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992)), a client who is told specifically that no attorney-client relationship has been formed will have a difficult time later showing a “reasonable belief” to the contrary. Confirming the status in a contemporaneous written document — whether hard copy or electronic — will also provide a critical record if questions arise later.

Read more from Case Law Updates, Ethics

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