Not an expert in NY law or in the regulation of the NY legal profession, but what Muffin said makes sense. Logically, you can’t be obliged to issue an engagement letter to a client unless the attorney-client relationship can pre-exist the engagement letter.
If there is an attorney-client relationship, and if the attorney is compliant with applicable professional regulation, then a client engagement letter will exist, so looking for a client engagement letter is often a quick-and-dirty test to see if there is an attorney-client relationship. But it’s not infallible; there could be such a relationship even where the attorney is in breach of an obligation to issue an engagement letter.
That NY law also does not include family law under its umbrella. That does not mean that there is no lawyer-client relationship between family lawyers and their clients.
I notice that the letter of engagement is not required for matters expected to cost less than $3000. Thus, if a TV reporter is paying his lawyer $10 for legal advice, the letter is not required. Also, all those TV shows where the lawyer tells a friend or colleague to hand him a $1 bill before telling him (the lawyer) a secret might have some basis in fact?
When I consulted a lawyer for a problem I had with an employer (non-payment of wages) he told me the first phone conversation was free. I then asked him to write a letter to the (now former) employer which work I did pay him for, but we had nothing more than a verbal agreement for him to do so. When we went to court he did have me sign a written agreement, but it was a contingency agreement so if we had lost he would have been paid nothing (we won, so he did get paid, as did I). When my husband died I asked about paying for some of his time to answer my legal questions and concerns about settling his affairs, but he said he’d be willing to give me a half an hour over the phone without charge and did so, which was both kind and invaluable (mainly, it was to establish that I did NOT really need legal help, I actually had covered all the bases on my own).
I would definitely say at this point we have a “lawyer-client relationship” of some sort, although only one agreement for a very specific situation was ever in writing. Then again, I’ve always promptly paid what I’ve owed him for the minor stuff, and we both agree that for something major (like a court case) it SHOULD be in writing.
Granted, none of this has concerned tens of thousands of dollars or anything particularly complicated. It’s still a lawyer-client relationship. I have certainly offered to pay for his time, even if he has chosen not to bill me for answering questions over the phone or in e-mail sometimes.
Thanks Broomstick. I think you summed it up very well. “For very specific situation” you generally do have a written agreement, (unless it’s pro bono, and that’s often when the defendant is unable to pay I believe) between the lawyer and client to make it a lawyer-client relationship. I do know of instances, where there is a lawyer-client friendship and that the parties go to lunch or dinner or generally socialize together, and that legal issues are discussed that would normally be for payment only. But I think those kinds of relationships are rare.
Speaking only in relation to my jurisdiction, and only in relation to solicitors rather than barristers, lawyers wear a bunch of different hats and have a bunch of different obligations - some of which are competing.
A lawyer’s paramount duty is not to the client, or to themselves or to the law society or to someone else, but to the court and to the administration of justice. Where there is any inconsistency, this paramount duty prevails.
When there is a lawyer-client relationship, the lawyer is a fiduciary to the client, but where there is a proper retainer, there is a contractual relationship between the lawyer and the client. Again, these obligations can often come into competition.
The fiduciary relationship will often arise before the contractual/retainer relationship does. If I am approached for advice by a potential client, I have to consider these obligations, and make sure that I properly address them. For example, if a prospective client seeks advice in relation to a matter in which I can’t assist (or if they aren’t prepared to go to the next stage of contractual relationship) it is prudent to write an ‘off risk’ letter to them - confirming I don’t act, telling them that there may be time limits or other issues that apply to their matter etc. The ‘pro bono’ relationship may end at this level as well, if I don’t enter into a contractual relationship. If a pro bono matter is litigious, however, or have costs consequences, again it is prudent to ensure that proper disclosure and costs agreements are entered into, to protect the lawyer in seeking costs.
The contractual relationship is where the ‘retainer’ arises, and where generally the agreement should be reduced to writing. There are often statutory/professional obligations to disclose certain things as well. In my jurisdiction, for example, there are certain things that we need to disclose and certain agreements we need to have with our clients if we want to be able to enforce certain methods of charging.