50 Ways to Become Someone’s Lawyer (Or How to Succeed in Entering Into a Solicitor-Client Relationship Without Really Trying)

There is so much talk these days about the business of law: rainmaking, marketing, business development, etc. All of this in pursuit of landing “clients”. Truth be told, it is actually quite easy to land a client. Many lawyers find to their surprise months or even years later that some casual encounter is actually deemed to constitute a “solicitor-client relationship” or at least the makings of one.

This has huge ramifications for a lawyer in terms of the law of conflicts of interest, the ethical duty of confidentiality and the client’s substantive right of solicitor-client privilege. It can also be the source of malpractice claims. In the internet age, there are concerns about the unauthorized practice of law.

It is trite law that Solicitor-Client Privilege applies generally to confidential communications between lawyer and client. However, it may also attach to preliminary communications between a potential client and a lawyer with a view to securing legal advice, even if the lawyer is not retained by the client or if the lawyer declines the representation. No bill need be rendered or retainer paid in order to establish a solicitor-client relationship (Re Markovina, [1992] 6 WWR 47 (BCSC)). Many cases involve the notorious “phantom client”. The CBA’s Conflict of Interest Toolkit has a great checklist on avoiding this dangerous person.

Many of the scenarios arise in conflicts cases because they provide the stakes for an apparent “client” to challenge their “lawyer” from acting for the other side. But the principles are the same and should apply to the duty of confidentiality and Solicitor-Client Privilege.

So in my homage to Simon and Garfunkel’s 50 Ways to Leave Your Lover, here are my “50 Ways to Become Someone’s Lawyer”:

1. The formal retainer (that’s a gimme).
2. More formal relationship even without a formal retainer agreement.
3. An initial in person consultation at the office (first consultation is free . . . or is it?).
4. A telephone consultation that does not result in a retainer.
5. A telephone consultation with a member of the lawyer’s staff
6. A voicemail message from a prospective client that includes confidential information.
7. An e-mail including confidential information sent to a lawyer.
8. An unsuccessful RFP (or “beauty contest”).
9. The dreaded “cocktail party conversation”: being asked a legal question in a social situation.
10. The modern equivalent of the cocktail party: answering legal questions on a blog.
11. Providing legal advice by Facebook, Twitter or other Social Media.
12. A discussion on the street with another lawyer who turns out to be the spouse of a client in a family law matter.
13. A discussion in a courthouse with another lawyer who turns out to be the spouse of a client in a family law matter.
14. A discussion with a lawyer about joining your firm and the lawyer’s estranged wife retains you a decade later to represent her.
15. A discussion at a car dealership with a salesman whose daughter is involved in family law litigation.
16. Giving legal advice to friends or family members.
17. Participating in a lawyer-referral service.
18. Giving legal advice for free / pro bono.
19. Potential clients filling out an internet questionnaire and sending it back to a law firm.
20. Where a person is too injured to speak with a lawyer and their designated representative speaks to the lawyer in their stead.

I know that this isn’t 50 but hopefully readers can add to this list.