11.6 – Who is My Client?

It might sound odd, but you should always ask yourself, “Who is my client?” Making it clear who you represent (and conversely, who you do not represent) is an important part of establishing a retainer and managing conflicts.

For example:

• A prospective client comes to you to discuss a joint venture they are planning with a friend. The friend might think you represent them both, and if you fail to take steps to disabuse the friend of that notion, problems may arise.
• You are acting for a company and find yourself receiving instructions and information from a shareholder and from a director. If you haven’t established who has capacity to instruct you on behalf of the company, this circumstance can easily evolve into a conflict.

It is important that non-clients do not act under the misapprehension that you are protecting their interests and provide you with confidential information. These examples illustrate one of the reasons to perform a conflict check at the beginning of the relationship, before confidential information has been imparted to you.

Always figure out who your client is and make the relationship clear to all involved.

Non-Engagement Letters

This is also an example of why it is important to use retainer agreements and non-engagement letters to clarify in writing who you represent and the scope of that representation. It is essential to document all communications that make the scope of your retainer clear. If you determine that a conflict of interest exists and you cannot represent a prospective client, send a non-engagement letter to them. The letter should advise that, due to a conflict, you will not be able to represent them, and that they should not share their confidential information with you. You should not provide any information about the nature of the conflict. Doing so may put you at risk of breaching the confidentiality of another client.

For more information, see Module 7 – Retainers, and the resources listed there. As well, the Law Society of British Columbia has created some sample non-engagement letters that may prove a helpful here.