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Legal Malpractice: The Formation of the Attorney-Client Relationship

Legal malpractice attorneys must sometimes litigate whether or not an attorney-client relationship was formed in a particular situation. I just finished a legal malpractice jury trial in the 345th Judicial District Court of Travis County, Texas against a large law firm. The jury returned a verdict in favor of our client. There were several issues in play during the three week trial, some of which will be detailed on this blog. One of the issues dealt with the formation of the attorney-client relationship. Some of the questions raised in our trial were: Can an attorney-client relationship arise without a written contract between a lawyer and client? What if the "client" does not pay the lawyer? Does this prevent an attorney-client relationship from being formed? For the formation of an attorney-client relationship, "[a]ll that is required is that the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship." Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App. --Texarkana 1989, writ denied). So, there is no requirement in the law that there be a written agreement between attorney and client or that the client compensate the attorney for a lawyer-client relationship to exist. Courts apply an objective standard, examining what the parties said and did. Sutton v. McCormick, 47 S.W.3d 179, 182 (Tex. App.--Corpus Christi 2001, no pet.). In my recent trial, there was no written contract; the client didn't pay a bill and there was no explicit agreement for legal services. However, none of those matters are dispositive. The jury was asked to determine if there was an attorney-client relationship between the parties. The judge crafted a question with instructions on the law of attorney-client formation. The instruction read as follows:

Was there an attorney-client relationship between [the law firm] and [plaintiff] at any time from February 18, 2008 to June 17, 2008?
An attorney-client relationship existed if [the law firm] and [plaintiff] agreed, expressly or impliedly by conduct, that [the law firm] would provide legal services of a specified or general nature to [the plaintiff]. Whether a party agreed is determined not by subjective intent but by the objective manifestations, of any, of intent.

The jury found that there was an attorney-client relationship. This was an issue that was raised in this particular legal malpractice trial, but is not always an issue that is contested in every legal malpractice lawsuit.

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