It is much easier to enter into an attorney-client relationship than it is to end one. Sometimes, even speaking casually with someone about their personal legal matter can bind an attorney into an attorney-client relationship recognized by the court. In any instance where someone might be considered a “prospective client” an attorney needs to be extra careful as to what s/he says if the lawyer does not intend to formally represent that person.1)See Nevada Rule of Professional Conduct 1.18. Although a person with no genuine intent to hire you as an attorney is not technically a prospective client, it would be hard to prove that lack of intent if s/he claimed you were his or her attorney. For that reason, it is best to decline to enter into casual conversation with someone about any of their personal legal matters.
How to talk to a prospective client
If you do formally or informally consult with someone for the purposes of possibly representing him or her, make it clear from the outset of the consultation that you are not entering into an attorney-client relationship until a retainer agreement is signed. But, in order to protect yourself and your firm, an attorney should always make it clear that the initial consultation does not result in formal representation. In the rare scenario that a client believes you did agree to represent him or her, and claims to have relied on your advice, it is best to have an iron-clad paper trail showing that you consulted and did not enter into an engagement.
For those clients that you do retain, you should also be careful to outline the terms of representation. If you are engaged for specific litigation, then note so in the retainer agreement and it will be expressly stated that you follow through until formal dismissal unless you later decide otherwise. If you limit the scope of engagement for a particular purpose, make sure that you clearly outline the terms of representation and when that representation ceases. And when that time arrives, make sure that you send the client notification with a paper trail and also formally file a Petition to Withdraw with the court if active litigation is pending.2)See Nevada Rule of Professional Conduct 1.2.
Withdrawal from an attorney-client relationship with active litigation
During an active litigation, if an attorney needs to withdraw, a petition seeking the Court’s permission to do so must be filed. Nevada Supreme Court Rule 46 permits the Court to allow withdrawal of an attorney in the middle of an active case if the client consents or with the Court’s permission. Eighth Judicial District Court Rule 8 limits this Rule by stating that if withdrawal will delay trial or other matters in the case, withdrawal will not be granted. The Court has wide discretion for allowing withdrawal and may grant it for non-payment, disagreements between clients and attorneys, substitution of other counsel, difficulties in client contact, and various other reasons where the attorney cannot dutifully represent the client. But, if the client’s interests will be greatly harmed with withdrawal, the Court will be hesitant to grant it without another attorney stepping in. If a Petition to Withdraw is granted, it is still important to send letters to the client creating a paper trail showing that you do not represent them and will not appear in any matter on his or her behalf. If a limited scope engagement has ended, it is still best to file a Petition to Withdraw because if the Court still has your name as attorney of record, you may receive notices that the client does not receive, which may cause problems for you down the road.
So always remember to make it crystal clear when you do and do not represent clients. Also, be sure to create all necessary paper trails, whether by filing petitions or sending letters to ensure there can be no question that you do not represent the client in question. You never want to be left on the hook when things go wrong for a client you did not even realize you represent.
