United States: How to Avoid Unexpected Claims From Unexpected People

Last Updated: December 2 2019
Article by Shari L. Klevens and Alanna Clair

As published in The Daily Report

It is fairly routine for attorneys to post content—on blogs, on social media or on their firm's webpage—regarding legal issues or breaking news. Here is a possible scenario. After posting an article about the state's requirements for filing a divorce, an attorney receives an emailed question from a member of the public, asking what steps are required to preserve an existing custody arrangement. The attorney replies, noting that, while the attorney cannot advise on the person's specific situation, the factors governing custody are outlined in specific statutes and case law. Six months later, the attorney receives a demand for legal malpractice, in which that member of the public argues that she suffered an adverse decision after relying on the attorney's article and follow-up "advice."

While obviously such a claim would appear to have little merit or value, given the attorney's actions, it is possible that a court would require significant discovery or litigation before dismissing the claim. Indeed, while an attorney's liability for professional negligence is generally limited to the class of people to whom the attorney owes a legal duty to exercise ordinary care, skill and diligence, there can be situations in which an attorney faces an unexpected claim from an unexpected source. 

That is because, under the doctrine of foreseeable reliance, a court could find that a professional owes a duty to those persons whom the professional is aware will rely upon the professional in the transaction, even nonclients. Courts sometimes examine whether an attorney-client relationship was formed not only from the perspective of the professional (to determine what the professional intended), but also from the perspective of the plaintiff to determine whether that person reasonably believed they were receiving legal advice or had an attorney-client relationship with the attorney. Here are some tips for how to minimize those risks—starting with the person responding to a blog entry and including other situations.

Using Disclaimers

Nonclients may attempt to argue that any interaction with a lawyer—at a conference, via Twitter or the email interaction described above—constitutes a legal relationship. The use of disclaimers, while not required, can help rebut such an assumption.

A disclaimer can be used to defeat a claim of foreseeable reliance. Indeed, many firms use disclaimers on their websites or on blogs to confirm that their attorneys are not providing legal advice through online posts. Such language could additionally suggest that no attorney-client relationship is intended unless the "client" receives an engagement letter from the attorney.

The use of such disclaimers is neither required nor an absolute defense against a claim from a non-client. But they can help reduce the chance that a court will conclude that a third party was reasonable in believing that they shared a confidential relationship with an attorney.

Using Engagement Letters

Engagement letters also help define the attorney-client relationship, including by identifying the client, the scope of the representation and the duration of the representation. Thus, the engagement letter can be a valuable tool in rebutting a suggestion that a representation extended to a party beyond just the client. 

For example, an engagement letter could state that a lawyer is providing legal advice to a corporation regarding specific issues. It could also specify that the lawyer is not being hired to act on behalf of or provide advice to executives of that corporation. Then, if an executive later claims that they believed the lawyer was acting on their behalf, the engagement letter can help rebut that claim. While engagement letters are not required to contain such specific or limiting language, including language aimed at limiting implied or unintended attorney-client relationships can be helpful down the road.

Many law firms will not permit a new matter to be billed to until there is an engagement letter in the record. If a lawyer or firm regularly sends engagement letters for new clients or new matters, the absence of a letter can be persuasive when a party claims an attorney-client relationship with the lawyer or firm but does not have an engagement letter in hand.

Some firms will consider putting language in the engagement letter that suggests what will be considered the "end" of a representation, such as the completion of an appeal or some specific period of inactivity. In the absence of some definition or limitation on the representation, a court may assume that the representation is a general representation for all purposes, giving rise to the argument that the attorney owed additional duties to the client that the attorney did not intend.

Another important component that can be included in an engagement letter is "no assignability" language. Most states prohibit the assignability of legal malpractice claims. However, some states permit the practice in certain circumstances or are ambiguous regarding when assignment is allowed. Thus, including nonassignment language in an engagement letter can help reduce the risk of a client assigning their right of action to a nonparty.

File Closing Letters

When it comes time to terminate an attorney-client relationship, the use of a file closing letter can help provide clear guidance to both the client and the attorney. While sending a file closing letter is not required—indeed, many attorneys and firms do not include the use of a file closing letter as part of their regular practice—it can help limit the receipt of claims after an expected time frame.

Closing a file can impact the applicable statute of limitations if there is a potential breach of duty to a client. Sending a file closing letter can confirm that the attorney owes no additional duties to the client and can serve as evidence to rebut a former client's assertion that they expected an attorney to continue the representation or take on additional risks. Closing files can serve as evidence that an attorneys' duty, either to clients or others, has ended and thus is another way to limit the possibility of receiving a claim from a third party.

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions