Conflicts: The Basics - Who is My Client?

It might sound odd, but always ask yourself: "Who is my client?" Making it clear whom you represent (and conversely, whom you do not represent) is an important part of establishing a retainer, and also helps you manage conflicts.

For example, a prospective client comes to you to discuss a joint venture she is planning with a friend. The friend might think you represent them both, and if you don’t take steps to disabuse the friend of the notion, problems can arise. This is one of the reasons you perform the conflicts check at the beginning of the relationship and before confidential information has been imparted to you. As another example, you might be 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 regarding the company problems, a conflict scenario can easily arise. Always figure out who your client is.

If necessary, send a non-engagement letter to the prospective client, advising them that you will not represent them, and you do not want to be contaminated with their confidential information.

You do not want non-clients to act under the misapprehension that you are protecting their interests, and have them provide you with confidential information. It is essential to document communications that make the scope of your retainer clear. Whenever possible and appropriate, provide a non-engagement letter to the prospective client or non-client.