When do you actually ‘have an attorney?’
You may have said or thought, “I have an attorney.” But, in actuality, do you? The process of hiring an attorney may be a new or still unfamiliar experience. Some people may never have had an attorney but may engage one in the future. Others who have had an attorney in the past may have lacked a complete understanding regarding the establishment of that relationship. When an attorney is next needed, it is important to fully comprehend how that relationship is created and if you truly “have an attorney.”
Nevada law requires no specific “formalities” in the creation of the attorney-client relationship. However, that relationship is consensual and it generally requires that the prospective client manifests the intent for the attorney to provide legal services and that the attorney manifests reciprocal intent to provide such services.
Typically, a one-sided act performed by the prospective client, such as sending a letter to an attorney, is not sufficient to create the attorney-client relationship. In rare situations however, an attorney-client relationship may be implied when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance. Todd v. State, 113 Nev. I8, 931 P. 2d 721 (1997).
An attorney is not always obligated to accept a case presented before them. An attorney should decline the representation of the client if that representation will result in the violation of the Rules of Professional Conduct (ethical rules) or other law or if the attorney’s physical or mental condition materially impairs the attorney’s ability to represent the client. An attorney should also reject the case if the attorney is incompetent or too busy to handle the case or if the potential client’s case would conflict with another client’s case. An attorney should not accept a case that is frivolous or when the client’s intent is to harass someone. Other good cause may exist that would require an attorney to reject the case.
In some cases, a court may appoint an attorney. An appointed attorney is free to accept or reject any case, but when making such decision, every attorney should remember their ethical duty to provide pro bono services to those in need. An attorney should not avoid the appointment unless good cause exists, such as representing the client would likely result in the violation of law, or representing the client would likely cause an unreasonable financial burden on the attorney, or if the client or the cause is so repugnant to the attorney that the client-attorney relationship or the attorney’s ability to represent the client would be impaired.
Regardless of whether the attorney-client relationship is created or not, the attorney still should keep the prospective client’s information confidential unless both the attorney and client expressly agreed otherwise.
It is wise to formalize the attorney-client agreement in writing. The retainer agreement, also called a fee agreement or an engagement letter, should carefully outline the terms of representation. The scope of engagement should be described so the kind of services the attorney will and will not provide are clear to the client. The cost of the legal services, required retainer, any associated expenses and the method of billing and payment should be agreed upon. The agreement should also notify the client that they may be responsible for the opposing party’s attorney’s fees in certain situations. The attorney’s and client’s mutual obligations resulting from their relationship should be outlined and the client should be notified that a suit brought solely to harass or coerce settlement may result in liability for malicious prosecution or abuse of process. Finally, the terms and conditions related to the termination of the attorney-client relationship should be clearly stated.
In sum, you “have an attorney” when there is a mutual agreement and understanding, preferably formalized in writing, to create an attorney-client relationship. Once the attorney-client relationship is formed, mutual duties, rights, and obligations follow.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.