The Elements Of An Attorney-Client Relationship
The New Jersey Disciplinary Board rejected an attorney’s contention that a loan did not violated the business transactions rule, finding that his argument that no attorney-client relationship existed at the time was ill-founded
an attorney-client relationship is formed when “the prospective client requests the lawyer to undertake the representation, the lawyer agrees to do so[,] and preliminary conversations are held between the attorney and client regarding the case[.]” Herbert v. Haytaian, 292 N.J. Super. 426, 436 (App. Div. 1996). It must, nonetheless, be “an aware, consensual relationship.” Palmieri, 76 N.J. at 58. On the attorney’s side, there must be a sign that the attorney is “affirmatively accepting a professional responsibility.” Id. at 58, 60. See also Procanik by Procanik v. Cillo, 226 N.J. Super. 132, 146 (App. Div. 1988), certif. den. 113 N.J. 357 (1988) (a lawyer “must affirmatively accept a professional undertaking before the attorney-client relationship can attach.”).
Here, the record contains numerous indications that respondent accepted responsibility for representing Spiegleman past the entry of judgment against the defendants. First, the engagement letter provided for a fee contingent upon
actual collection. This would have suggested to any reasonable client that collection was within the scope of representation. Respondent himself conceded as much when he asserted that the engagement letter was a “routine form” that he used in other cases, and that in those other cases he never mentioned blended fees unless he expected to collect. These assertions make clear that the letter was typically used where respondent intended to pursue collection.
Second, respondent’s desperate appeal to context cannot negate the clear dictates of RPC 1.5(c). That Rule, although uncharged in this case, clearly states that “upon conclusion of a contingent fee matter,” an attorney must provide the client with a statement indicating “the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” It is undisputed that respondent never provided such a statement and, thus, Spiegleman reasonably relied upon him to collect on the judgment.
Third, as of August 11, 2017, the parties were still communicating regarding a “final order,” as evident by respondent’s e-mail bearing that date.
Fourth, in our view, Spiegleman’s position that, in March 2017, respondent accepted responsibility for collection, is clearly and convincingly borne out by the parties’ subsequent behavior. Specifically, on June 15, 2017, Spiegleman asked respondent what the “next step” would be because it had “been almost six weeks since the proof hearing.” If respondent had not accepted responsibility for the “next step,” he should have communicated to her that he was no longer her lawyer. However, there is no record of such a communication. To the contrary, respondent continued to function as Spiegleman’s lawyer, as evident by his August 11, 2017 e-mail regarding the status of the final order. That same date, respondent asked Spiegleman for the loan, and she agreed.
More than two months after the loan transaction, on August 24, 2017, respondent explicitly confirmed that he was still Spiegleman’s lawyer. In an email exchange on that date, Spiegleman referred to respondent as “my lawyer,” and respondent agreed with her by stating “[a]nd your friend.” He then immediately added that it was time to chase Weiner for “serious money.”
The client had known the attorney since 1967 and had worked for him for about ten years
After Spiegleman left respondent’s employ, she remained on friendly terms with him; in fact, they shared a sibling-like relationship. Spiegleman would type documents for respondent when his practice was under time pressure, and he would undertake minor legal work for her and her family, free of charge.
The loan was for $4,500 for “a couple of days”
The Supreme Court imposed a reprimand. (Mike Frisch)