Advocates and solicitors owe many duties to their clients, but generally do not owe duties to the public while performing  their obligations to their clients.  It is paramount, therefore, that an advocate and solicitor be able to distinguish between clients and non-clients.  While this may sound like a simple task, often it is not.

Suits by persons claiming to be clients (but whom the advocate and solicitor did not intend to represent) frequently fall  into three categories:

The Case Study, found at the end of this article, provides an example of how such disputes may arise.  Presented is a   classic situation where the advocate and solicitor believes she is not representing the potential client, but the potential client believes otherwise.  In the example, the advocate and solicitor did not realize that she and the plaintiff had different understandings until after the statute of limitations had run on the plaintiff’s claims in the Sabah hospital case.
 

Another example of how conflict frequently arises is in a failed business venture.  In such disputes, the advocate and solicitor may have represented one party in the venture while other interested parties in that venture were unrepresented.  When the venture fails, the unrepresented owners of the company, and sometimes its investors, may claim that the advocate and solicitor was also their advocate and solicitor, and failed to adequately protect their interests!  Any ambiguity or absence of sufficient documentation on who the advocate and solicitor did or did not represent in the failed business venture may leave the advocate and solicitor vulnerable to a negligence suit.

Lawyer-client relationships are based on contract.  That contract, however, can be implied from the conduct of the parties.  The absence of the normal indicia of a lawyer-client relationship (such as a fee agreement and billing statements) may not be dispositive of the question of whether a lawyer-client relationship exists.  Hence, the best protection against such claims is documentation of

The scope of an advocate and solicitor's representation (of a client) should, as far as possible, be defined in a fee agreement and/or retention letter.  These documents should clearly state who the advocate and solicitor is representing and the scope of that representation.

Should an advocate and solicitor decline to represent a potential client, he should document that decision in a “non-engagement” letter to that potential client as well.  Without such documentation, the alleged client may be able to create sufficient questions of fact to submit the question of the existence of a lawyer-client relationship to the judge.

Problems like the one highlighted in the Case Study may be avoided by taking a few minutes to prepare and provide a non-engagement letter. Following are sample non-engagement letters:[1]
 

 

Dear Ms Tan, I am writing to confirm that I will not be representing you in any matter related to your business venture with my client, MBC Sdn Bhd.  I was hired by Mr Foo to prepare the documents for that venture and to provide him with legal advice about that venture, so he is my only client in this matter. Although you may receive some incidental benefit from the work I do for Mr Foo, I want to make sure you understand that I am not representing your interests in this matter.  You may want to retain your own lawyer to review the documents I prepared for Mr Foo and to otherwise provide you with legal advice about your proposed business venture with Mr Foo. Yours very truly, Messrs Annie Ting

One source of debate concerning the content of a non-engagement letter is whether the advocate and solicitor should advise the person of the actual deadline(s) applicable to their case, particularly if a deadline is quickly approaching.

For example, does the advocate and solicitor tell the person that the statute of limitations will bar their claim if they do not file their suit by the sixth year from the date of their accident if the accident happened five years ago?  There is no right answer to this question.  The problem, of course, with trying to advise someone about specific case deadlines is that the advocate and solicitor may not have sufficient expertise or facts to identify all of the applicable deadlines.  Some prefer not to provide advice to non-clients about specific deadlines applicable to their cases unless that deadline is imminent.  By providing the person with advice about specific deadlines, the advocate and solicitor may be liable if that advice is wrong or if the advocate and solicitor fails to advise the person of other applicable dispositive deadlines.

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