One key to avoiding conflict claims is confirming who is and who is not a client. If a lawyer undertakes actions that could lead a person to reasonably believe they are a client, liability may result as if an attorney client relationship exists. See Parker v. Carnahan, 772 S.W.2d 151,157 (Tex. App.-Texarkana 1989, writ denied). The best conflicts system in the world is useless if a lawyer fails to appreciate that they have allowed someone to form a reasonable belief that they were the client.
To avoid creating such beliefs, firm policies should require that attorneys document who is and who is not a client, and act consistent with that documentation. When dealing with entities, a lawyer always talks to a representative of the entity. The lawyer must make clear and document that they are representing the entity and not the representative if there is any possibility that the representative will be confused. A representation letter addressed to the representative stating that the entity is the client should avoid such confusion. The attorney must then avoid giving personal advice to the representative. When the entity representative is the primary owner or manager of the entity, clarity as to the identity of the client is particularly important.
An attorney may represent one party in a matter, and other parties may not be represented by counsel. Letters confirming that the attorney does not represent the unrepresented parties help avoid confusion. Avoiding giving any type of advice to the unrepresented parties, other than the advice to seek other counsel, avoids claims that the attorney did represent the parties.
If a matter is declined after initial discussions, a declination letter can avoid any misunderstanding about the formation of an attorney client relationship. If a matter is declined, the best practice is to avoid providing any legal advice other than the advice to seek other counsel quickly.
