A lawyer cannot follow a client’s directions if it isn’t clear who the client is.
It may sound like an academic question, but there are many real-life situations where attorneys are not sure of the client’s identity. Here are a few of those scenarios:
There are many types of representation in which third-party payers are common. For example, sometimes in civil litigation an insurance company foots the bill. In criminal matters for a young adult, and parent probably pays. In less common scenarios, an existing client may bring in someone and offer to pay the bill for your services.
The third party paying the bill is not your client, even if they are your client in another matter. Since they are not the client, do not follow the payer’s instructions when they conflict with the client’s, and remember the payer cannot be involved in privileged communications.
Multiple Owners of Marital Property
In a family law matter involving property, such as a divorce, third-party interests can come into play if someone outside the marriage has an interest in marital property. For example, parents may have provided the down payment on the marital home in exchange for an equity-sharing arrangement. Though you may be contacted by these other property owners in the course of representing one of the divorcing spouses, those other owners are not the client.
Consider this scenario: midway through immigration work to bring a non-citizen spouse into the US, the couple divorces. They have already paid you for your work. Which spouse has the right to seek a refund of your fees? (Not to say they would be entitled, but it would be the client who can seek the refund.) Which spouse is the client?
Representation of multiple clients in the same matter is always thorny to some extent, and when jointly represented clients give conflicting instructions, it becomes an absolute briar patch. Yet it is extremely common in many areas of law, particularly immigration.
An immigration lawyer will often represent an entire family in their aligned efforts to immigrate; sometimes, both the immigrant and a US citizen spouse are represented, even though the spouse does not actually need immigration services except in the capacity of a sponsor. Signed conflict waivers are a must, as are discussions with the clients about whose instructions are to be followed.
Major consumers of legal services, such as corporations and other institutions, are made up of individuals who do not always agree on legal strategy. Lawyers for institutions may face conflicting instructions from individual members of an organization.
A lawyer’s duty is to the client, which is the institutional entity, and not an individual within the organization (even the individual responsible for bringing the business to the lawyer). Practically speaking, this means the lawyer can be faced with telling the person they think of as the client (the one the lawyer talks to on behalf of the entity) to rethink instructions the lawyer deems against the interest of the corporation, or the lawyer may have to take an issue up the chain of command in the entity beyond the authority of the person giving the instruction.
Either situation can lead to a very awkward attorney-client relationship.
Representing an Entity and Individuals Within It
Since entities are major clients, sometimes when their individual members also need representation, a single lawyer is hired to handle both. This seems logical at first blush, when the interests of the entity and individual are aligned, but you must be very careful about conflicts arising in the representation.
In securities fraud cases, for example, there often comes a point where the organization is best served by blaming (and disowning) an individual within it. Who the lawyer represents then becomes a key issue.
If the lawyer has been representing the entity and the individual about to take the fall, it is likely the lawyer will have to withdraw completely, losing both clients. If the lawyer was only representing the entity and not the individual, but the individual did not know that, the individual may end up with a valid complaint against the lawyer. The identity of the client needs to be made clear at the outset (and sometimes revisited repeatedly).
Partnerships and Other Small Entities
Institutional clients are often large corporations, but client identity is even less clear when dealing with small businesses such as partnerships. Two people come to you to write a partnership agreement, and there are multiple possibilities for the identity of the client. One of the people but not the other? Both jointly? The partnership? Make sure you clarify at the outset to whom your duties are owed and who holds the rights and responsibilities of the client role.
A different type of entity is a governmental one. When you represent a city, for instance, the client is not the general public residing within the city; the client is the city itself. Think of it like representing a corporation but not its individual shareholders.
Clients Needing Assistance
When representing individuals, the client may need someone to assist them in obtaining your services due to a language barrier, the client being elderly, the client being informed but not incompetent, or the client being physically handicapped.
Any time another person is involved in the delivery of legal services to the client, the line between client and helper can get blurred. It becomes a problem when privilege is challenged or when instructions conflict. Your client is not the helper unless you are in a joint representation situation.
Not as Obvious as It Seems
The idea that you may not know the identity of your client may sound absurd, but as these examples illustrate, it is an actual concern in many cases. This is one more reason why clearly defining the roles of all persons involved in a representation at the very beginning is critical.
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