When Is Your Lawyer Your Lawyer?

Television and movie writers like to create a scene in which the lawyer says to another person, "Give me a dollar!" Once the dollar is handed over, there is a lawyer-client relationship formed. All the duties and obligations now apply, and the one most commonly used for entertainment purposes is the duty of confidentiality. We are prohibited from disclosing information about our client's personal and business affairs without the client's permission.

Is this really how it works? Not quite.

Payment of a retainer in any amount is definitely one clear indication that the client has hired us. However, we can be retained and become the lawyer for a client without money changing hands. 

The question of whether a solicitor-client relationship has been created is a question of fact. The lawyer may not believe they have been hired nor want to be hired, but the facts can suggest that they have been retained by a client.

This odd situation can come up when a current client brings a friend with them to their lawyer appointment, and the friend asks for advice. Or, the lawyer may be helping a client with a divorce but in passing the client asks for advice on an unrelated real estate matter. A person may phone a lawyer and explain that they have a court appearance the next day. The lawyer agrees to help with the court appearance only, but does not believe he or she has been retained for the whole case. In these situations it is very important that the lawyer is clear with the (new) client about their role.

When Judges are asked to decide if a lawyer has been retained or not, they will look at all the communications between the lawyer and client, whether there was a retainer letter or contract, whether a file was opened, whether a bill was issued or paid, what the lawyer told the court or the other side and whether legal advice or just information was given.

When is your lawyer your lawyer? 

The legal test is "whether a reasonable person, in the position of a party with knowledge of all the facts, could reasonably form the belief that the lawyer was acting for a particular party" (Zimak v. 4244354 Manitoba Ltd et al 2015 MBCA 58)