Pretty basic legal stuff you might say. If so, why do so many legal malpractice claims involve lawyers who lost sight of their clients. The wandering off of true client north leads to conflict of interest claims. Those can cause you some distress since juries just do not see your point when you say there was no conflict. They think bible verses about having only one master. You will make it a little rough on your defense counsel if you get mission creep from your initial engagement by the loss of the identity of your real client.
Believe me, this happens to good lawyers. They have represented Fred and his company for years, but in a business deal or in litigation they forget they represent only the company — and not good old Fred’s interests. What about a partnership or a 50/50 stock ownership and you focus only upon one of them for guidance? Take a joint representation and fail to disclose the same information to both and see where you end.
A solid way to deal with the issue is to take the pain at the file opening stage. Define your client and your terms of engagement without fail. Do it in writing. To do that, prevent any files from being opened until that engagement letter is prepared. Sure the clients can then change and the engagement mission changes. It is real easy to just send an e-mail to document that you have also asked us to also represent the treasurer of the company and we have explained to you any risk of conflict and both of you consent, etc. You can do the same simple approach for your new tasks: In addition to our engagement letter of January 1, 2014, you have asked to also do X and represent Y in the same litigation. Believe me, when a claim is made, you need to be able to hand over a writing that says who you were to represent and what you were to do. It also forces the lawyer to remember who his client is at all stages.
Of course, when you get one of these course corrections after the engagement letter, you better also think of it like opening a new file and do a conflicts check on any new client or new adverse party. What was clear of conflicts yesterday may not be so today.
These are simple things. They should be a matter of routine. Yet lawyers lose their way on who their real client is at times. Make it a simple process of a full stop until an engagement letter is done specifically stating (1) who the client is; and (2) what is to be done. Then require, insist and harass until another writing to the client(s) is done when there are changes. Exhibits “A” and “B” of these will be your friends later when the client’s memory fades, or it is more convenient to remember it differently. Some lawyers do not make very good defendants or witnesses because of non-lawyer’s perceptions on conflicts. Clear writings and identity of client and engagement sure help them look good.
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