Formation and Scope of the Lawyer-Client Relationship
The retainer defines the relationship
The lawyer-client relationship normally arises from an express or implied agreement (the retainer), but duties can attach before it is formalised - a preliminary consultation is already confidential. Clarify who the client is, what is in scope, what is excluded, the fee basis, and who has authority to instruct.
Concepts
- Client identification and verification: know-your-client and anti-money-laundering duties before acting.
- Scope: limited retainers are legitimate but must be recorded; scope creep is a common source of complaints.
- Entity clients: where you act for a company, the client is the company, not its directors or shareholders. Duties run to the entity; manage reporting to individuals carefully.
- Third-party payers: a parent, insurer or employer paying the bill does not become the client and does not acquire the right to direct the matter or see privileged advice without consent.
- Authority and capacity: verify who may bind the client and whether the client can properly instruct.
- Termination: withdrawal requires notice, court leave in litigation, protection of the client's interests, and return of papers subject to any lien.
Traps
Assuming the person paying is the client; treating a director's instructions as the company's when the board has not authorised them; allowing a limited retainer to expand without written confirmation; acting for both spouses on a joint purchase without documenting the joint retainer and its limits.
Worked example
A mother pays for her daughter's immigration application. The daughter is the client. If the mother asks for the file, you must decline without the daughter's consent - the payer's money does not buy the privilege.
Rule of thumb: capture the retainer in one page - client, scope, exclusions, fees, who instructs, and how the matter ends.