Who Is the Client and Why It Matters
The Bencher—January/February 2021
By Marshall D. Senterfitt, Esquire
Oftentimes when a person or entity engages a lawyer, there is little doubt or confusion as to the identity of the client. There are some situations, however, in which identifying the client—and just as importantly, identifying who is not the client—can be challenging. The consequences of confusion over the identity of a client can be dire.
To avoid confusion, frustrated clients, ethical dilemmas, potential privilege waivers, or worse, it is important for lawyers to carefully consider who they are representing at the outset of an engagement and as the matter progresses. It is easy to skip this step, especially when a new matter comes in and there is pressure to get to work on substantive issues quickly. But, as the adage goes, a pinch of prevention is worth a pound of cure.
My practice is illustrative of the kinds of issues concerning the identity of the client that should be managed at the outset of an engagement. I am a litigator with a focus on high-stakes probate and trust disputes, will contests, fraud claims, and all manner of other issues arising between and among families. I also frequently represent professional trustees who are lawyers, investment advisers, or other professional service providers. I have learned over the course of my career that it is imperative to ask at the outset of each new matter, “Who is my client?”
One common situation that arises in my practice is a request to represent multiple family members in a dispute. When faced with a potential joint representation, some of the initial questions that must be addressed include:
- Are all of the potential clients’ interests aligned?
- Is there potential that their interests will diverge?
- Who is going to pay the bills, and are all of the clients going to be responsible?
- Is there going to be one spokesperson or decision-maker for the group, or will everyone participate in all communications and decisions?
- Is everyone going to be a party in the event of litigation?
- In what capacity will each client be represented (e.g., are some or all of the clients involved individually, as trustees, executors, or perhaps in multiple and overlapping capacities)?
When considering a joint representation, whether for a family, multiple business entities, or a mix of entities and individuals, it is critical to identify the specific interests and goals of each potential client. When I evaluate these questions, I often have a detailed conversation with the potential clients to make sure everyone is on the same page about his or her respective role and relationship to the matter. Where appropriate, we will memorialize specific arrangements in an engagement letter and directly address issues such as confidentiality between and among jointly represented clients and what may occur if a conflict arises in the future.
Carefully identifying the client(s) at the outset of any new matter not only helps the attorney address potential ethical and other issues, but it also presents a good opportunity to educate clients about confidentiality, attorney-client privilege, work-product protection, and other nuanced aspects of the law with which many clients are not aware.
It is important to keep in mind that even when there is only one potential client involved in a prospective new matter, that client may need counsel in multiple capacities. For example, when asked to represent a professional trustee who also is a partner in a law firm, trust company, or other organization, we must evaluate whether and to what extent the client is involved in the matter as a fiduciary, individual, and/or as a partner in the firm. Evaluating the precise nature of a client’s role and capacity in a matter helps identify potential privilege issues as well as ensuring we and our client understand who will be paying the legal fees.
Another common issue we face is clients who want to include non-clients in communications. For example, a client may want to involve a spouse, child, or a non-lawyer adviser in communications with his or her lawyer. There are many ways to handle these situations, but the most important step a lawyer can take is to make sure the client’s goal is understood, who the client wants to involve, and why. Once these things are understood, a solution can be crafted to best serve the client under the circumstances.
In addition to identifying the client or clients at the outset of an engagement, it is important to stay vigilant as a matter progresses in order to correct any confusion on the part of a client or an interested party who is not a client.
In my practice, I often receive calls or emails from non-client family members seeking information or advice. I hear statements such as “I understand you are our lawyer,” “I hear you are representing the family in this case,” or “My sister tells me that you represent the estate.” When any lawyer hears statements like these, it is important to clarify who the client is, make clear that non-clients are not represented by the lawyer, and follow up with the client or clients to make sure they are aware of the conversation.
Complicated questions about the identity of clients and non-clients also arise in many other types of practice. In commercial litigation, it is not uncommon for a company and one or more of its officers or employees to be parties to a case. A lawyer engaged to represent a company defendant must be careful in determining who they represent and must communicate the scope of their representation to all interested parties. There may be cases in which a company’s and an individual’s interests are aligned and they can be represented jointly (provided that all applicable ethical requirements are followed for a joint representation). There are other situations, however, in which an individual’s interests differ significantly and may even be adverse to the interests of the company, and separate counsel will be necessary.
Similar issues arise in corporate transactional practices. A lawyer advising an entity in a transaction must analyze whether one or more officers, board members, or employees have a personal interest in the transaction, and if so, whether separate counsel is required. Even more complicated are situations in which a single person has conflicting interests and obligations. For example, a CEO who also is a shareholder in a company may have an obligation to pursue a transaction that is good for the company even though it may not be a transaction that is best for the CEO as an individual shareholder. Another challenging situation is when an officer of a company serves as a board member or in another capacity for an affiliated or subsidiary company. Dual roles such as these often trigger competing interests and duties, and the same person may need separate counsel in their separate roles.
In all of these situations, the attorneys involved must pay close attention to who they do and do not represent, and just as important, they must communicate clearly and carefully to all of the interested non-lawyer constituents involved.
It can be tempting for a busy lawyer to engage in discussions with non-clients seeking information without clarifying who the lawyer represents, particularly if the non-client is not adverse in the matter and when the information sought is not particularly sensitive or privileged. The danger in having such discussions without clarifying boundaries, however, is that the non-client may be left with a false inference that he or she is represented by the lawyer. Good practice in these circumstances is to respond to the inquiry, but also make clear that the lawyer does not represent the non-client and is not providing legal advice. This will help avoid a non-client from being confused or being left with the impression that “the lawyer” is his or her lawyer.
Every new matter brings with it unique circumstances, many of which are beyond a lawyer’s control. However, identifying the client, the client’s capacity, and any interested party non-clients is something that every attorney can and should proactively address and carefully manage to avoid potential negative consequences.
Marshall D. Senterfitt, Esquire, is a director at Goulston & Storrs PC where he advises clients in litigating and resolving high-stakes trust and estate disputes. His practice includes assisting clients with fiduciary duty claims trust and will contests, lack of capacity or fraud, and other probate and fiduciary litigation matters. Senterfitt is a board member and the president of the Greater Boston Fiduciary Law American Inn of Court.