[WSBARP] Ethical Question

[Eric Nelsen]

Oy, what a mess! The lawyer changed clients midstream, from one side of the transaction to the other? Is there something expressly stating that in the file, or is the "appearance" because the lawyer unwisely gave advice to the parents when sending the document that he was drafting for his client, the son?

I would analyze the lawyer's communications with the parents to see if I can argue that the lawyer never switched clients, but in fact represented the son the entire time. I think that the key would be whether the lawyer in fact created an attorney-client relationship with the parents, which is partly a subjective standard on whether the parents reasonably believed that they had retained the attorney. If you can show that the attorney-client relationship never formed between lawyer and parents, then the attorney-client privilege shouldn't attach.

>From WSBA Law of Lawyering (2012), which has a much more extended discussion than this excerpt:


The principal case law in Washington on when and whether an attorney-client relationship has been formed is found in the legal malpractice cases. This is because it is usually necessary to prove the existence of an attorney-client relationship in order to prove legal malpractice.26<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#_ftn_26> But the rules relating to the formation of the attorney-client relationship apply in both the malpractice and the disciplinary contexts.27<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#_ftn_27> Examination of the cases shows that Washington follows the principles summarized in the prior paragraphs. Thus, the state Supreme Court has summarized the law on the relationship as follows:

[T]he essence of the attorney-client relationship is whether the attorney's assistance or advice is sought and received on legal matters. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 306, 45 P.3d 1068<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=45+P.3d+1068&fn=The%20Law%20of%20Lawyering%20In%20Washington> (2002); Bohn [v. Cody], 119 Wash.2d [357, 363 (1992)]. An attorney-client relationship may be implied from the parties' conduct; it need not be memorialized in writing. Bohn, 119 Wash.2d at 363. Whether or not a fee is paid is not dispositive, for "[t]he existence of the [attorney-client] relationship 'turns largely on the client's subjective belief that it exists.'" Id. (quoting In re Disciplinary Proceeding Against McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=663+P.2d+1330&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1983)). However, the subjective belief must be "reasonably formed based on the attending circumstances, including the attorney's words or actions." Id. n.8.28<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#_ftn_28>


26.<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#ftn_26>Hizey v. Carpenter, 119 Wn.2d 251<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=119+Wn.2d+251&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 260, 830 P.2d 646<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=830+P.2d+646&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1992); Sherry v. Diercks, 29 Wn. App. 433<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=29+Wn.+App.+433&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 437, 628 P.2d 1336<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=628+P.2d+1336&fn=The%20Law%20of%20Lawyering%20In%20Washington>, review denied, 96 Wn.2d 1003 (1981); Hansen v. Wightman, 14 Wn.App. 78<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=14+Wn.App.+78&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 88, 538 P.2d 1238<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=538+P.2d+1238&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1975); see also Bowman v. Two, 104 Wn.2d 181<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=104+Wn.2d+181&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 185, 704 P.2d 140<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=704+P.2d+140&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1985) (exploring the question of when persons who are not clients might have malpractice claims against an attorney, but disapproving of Hansen v. Wightman as going too far in this regard).

27.<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#ftn_27>See In re McGlothlen, 99 Wn.2d 515<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=99+Wn.2d+515&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 663 P.2d 1330<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=663+P.2d+1330&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1983).

28.<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#ftn_28>In re Egger, 152 Wn.2d 393<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=152+Wn.2d+393&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 410-11, 98 P.3d 477<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=98+P.3d+477&fn=The%20Law%20of%20Lawyering%20In%20Washington> (2004).

29.<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#ftn_29>Conner v. Hodgdon, 120 Wash. 426<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=120+Wash.+426&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 431-32, 207 P. 675<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=207+P.+675&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1922) (internal quotation marks omitted).

30.<https://washington.casemakerlibra.com/home/libra_2.aspx?login=6a6566664073617972656c61776f6666696365732e636f6d&st=WA&pd=dac858bd52e7cec443f5e6219def273d0fa0441413508ca4b1ff0f8ecdb447de&bookid=9085&p=8210#ftn_30>Bohn v. Cody, 119 Wn.2d 357<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=119+Wn.2d+357&fn=The%20Law%20of%20Lawyering%20In%20Washington>, 363, 832 P.2d 71<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=832+P.2d+71&fn=The%20Law%20of%20Lawyering%20In%20Washington> (1992).


Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jeff Davis
Sent: Thursday, October 8, 2020 11:33 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Ethical Question

Listmate,

Client (the son) is in a dispute with parents over a deal where the parents allegedly were to transfer real property to him.  Son goes to his lawyer to draft the agreement but some where in this process the lawyer appeared to switch sides and represented the parents.  The contract(s) were drafted and signed.  The terms are not clear.  Lawyer dies and this particular file went to his daughter.  I located her and had her find that file and send it to me.  I told opposing counsel (who now represents the parents) what I was doing.  The only response was if that file contained the parents' estate planning documents that I could not share them with my client.  There were no estate planning documents in the file.

The file contained emails from parents to lawyer which are beneficial to our case.  I know the attorney client privilege survives death.  Can I use the emails and what ever else is in the file?

Jeff Davis

W. Jeff Davis, Esq.
BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129
Fax No.: (360) 683.1258
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