Ethics

Determining Current and Former Clients

by Dean R. Dietrich

Our firm keeps the original wills that we have prepared for clients. I have been contacted by a business client to bring a lawsuit against someone whose original will is in our safe deposit box, but for whom we have not performed any legal work for the past 10 years. May I bring suit against this individual?

Answer

The answer to this question turns directly on whether the individual whose original will is in your safe deposit box would be considered a current client or a former client. If this person is considered a current client, you may not bring suit against this individual even if both parties consented to the representation of the business client and the lawsuit being brought. If the individual is considered a former client (even though the original will is located in the firm safe deposit box), you may be allowed to commence legal action against the individual on behalf of another client, provided that the legal action is not the result of or substantially related to the representation of that individual in preparing the will. See SCR 20:1.9.

Thus, the first question to be determined is whether this individual is a current client of your law firm. The State Bar Professional Ethics Committee, in E-95-5: Formation of Attorney-Client Relationship (in PDF format), noted that various factors must be considered in determining whether an attorney-client relationship exists:

"Whether an attorney-client relationship is formed depends upon the intent of the parties and is a question of fact. Marten Transport v. Hartford Specialty Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995). An attorney-client relationship is not formed simply because one of the parties knows that the other is an attorney. Such knowledge, however, coupled with legal advice being sought and provided, ordinarily is enough to establish the relationship."

Some of the factors that would normally be considered are the reasonable belief of the individual that your firm is considered his or her attorney, whether the individual is still receiving mailings or newsletters from your firm, whether there has been any other contact of a general nature over the past 10 years that could be considered legal representation or advice giving, or whether the individual has referred other prospective clients to your law firm.

In this case, if these factors suggest that the individual whose original will is in your firm's possession reasonably believes that your firm is his or her attorney, it is likely that the individual will be considered a current client of the law firm, and you may not bring an action against this current client because of the rigorous requirements of SCR 20:1.7.

Under SCR 20:1.7, a lawyer may not represent one client whose interests are adverse to the interests of another client unless both clients consent in writing. However, further requirements state that the lawyer must reasonably believe that his or her "relationship" with the client will not be "adversely affected" by the representation of the other client. In this case, the commencement of legal action against an individual who would be considered a current client would be considered such an inherent conflict of interest that you could not bring an action against that individual. This inherent conflict is suggested within the comment to SCR 20:1.7, which states:

"Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph (b). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question."

If the circumstances reasonably suggest that the law firm is merely holding the original will in trust for the individual but is not providing any legal representation, the individual would be considered a former client, and under most circumstances, the lawyer could commence an action against that individual. The requirements of SCR 20:1.9 address instances of a conflict of interest with a former client. An attorney may not represent one client whose interests are materially adverse to the interests of a former client if the representation involves a matter that is the same or substantially related to the nature of the prior representation of the former client unless the former client consents in writing. Here, if the individual would be considered a former client, the attorney could bring an action against the individual unless the action relates directly to the legal representation that resulted in the preparation of the will for that individual. If the nature of the action to be commenced on behalf of the business client is unrelated to the preparation of the will (or the assets) of the former client, it is likely that the attorney could proceed with representing the business client in an action against the individual.

The mere holding of the original will in the law firm's safe deposit box does not automatically create or perpetuate a current client relationship; however, the attorney must scrutinize the extent of contact between the law firm and the individual to fully assess whether a current client relationship exists. The decision as to whether the individual is a current or former client will depend on a factual analysis. However, exercise caution, since the determination will be based on the individual's reasonable expectations and whether the individual presumes that your firm is still his or her attorney.

Wisconsin Lawyer