The most basic element of an action for legal malpractice is the existence of an attorney-client relationship between the plaintiff and the defendant lawyer. If the lawyer did not represent the plaintiff, the lawyer ordinarily wins. It is as simple as that.

Lawyers understand this rule. The rule, however, provides far less protection from liability than lawyers often assume.

For purposes of civil liability, the client is not limited to those persons whom the lawyer believes he or she represented. Such a view completely ignores the realities of the American fact-finding system. As a practical matter, the "client" is not defined by the lawyer's belief. Cynical as it may sound, the client is anyone who claims to be a client unless the lawyer can prove otherwise.

Think about it. For purposes of civil liability a prima facie case for an attorney-client relationship is made out simply by testifying that one exists. This is a rather minimal threshold burden. Accordingly, unless the lawyer can prove otherwise, the client is anyone who claims to be a client, whether the lawyer agrees or not.

This is not an academic point. Every year many lawyers are sued by persons who claim to be clients but whom the lawyer denies ever having represented. Such cases often involve exceptionally serious liability problems. If the lawyer did not believe he represented the plaintiff, the lawyer would have made no deliberate effort to protect the rights of the plaintiff. Legal objectives are rarely obtained when left up to pure luck. Moreover, the lawyer probably represented someone whose interests were adverse to those of the plaintiff. Accordingly, the lawyer's conduct is likely to appear grossly negligent at best to anyone who believes that the lawyer represented the plaintiff.

Many legal malpractice actions in which the existence of an attorney-client relationship is disputed are the product of bogus claims by dishonest individuals. As often as not, however, such claims are based upon a misunderstanding.

For example, lawyers are often retained to represent the interests of an entity such as a corporation. Officers, directors, shareholders and even employees do not always appreciate that their individual legal interests may not be precisely co-extensive or identical to those of the corporation.

Consequently, they may believe that the corporation's lawyer is also their own personal legal counsel. When the lawyer faithfully discharges his duty of undivided loyalty to his client, the corporation, disappointed individuals are apt to sue "their" lawyer for not protecting their legal interests.

Misunderstandings also commonly arise where the lawyer represents one party to a transaction but the opposing party has no legal counsel. When the lawyer tells the unrepresented party that he should retain a lawyer, the person responds that he knows the lawyer will be fair. Any such comment should be interpreted as a statement that the opposing party is looking to the lawyer, at least in part, to protect his interests. In other words, the opposing party perceives himself as a client of the lawyer. A suit for legal malpractice should come as no surprise if the lawyer does nothing more to protect himself.

Lawyers have heard it said a thousand times that they should make a record of all important matters pertaining to any legal representation. They should never forget, however, that one of those important matters may be the identity of persons whom the lawyer does not represent.

In any situation where the possibility exists that some nonclient may claim to be a client of the lawyer's, whether it be through misunderstanding or outright dishonesty, the lawyer should make an appropriate record.

I am referring to something in the nature of a nonengagement letter. The difference, of course, is that the lawyer has been engaged - but not by the person to whom the letter is sent. The letter need not take any particular form. Its adequacy should be judged by the simple test of whether it will be admissible in evidence and demonstrate to the finder of fact that no attorney-client relationship ever existed.

If my advice in this column ever seems a little watered down ... well, what can I say? I, for one, do not want to be held to any absolute standard when we all know there are exceptions to every rule.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.