Ask the Lawyer: Can a lawyer working in a non-law firm give legal advice?
Q: I have a dispute with a friend. I say that licensed lawyers in California can practice law (give legal advice) as an employee in a non-law firm. That is, a licensed lawyer can work as an employee at an architectural firm, engineering firm, etc., and provide legal advice. My friend says no. Who’s right?
-J. M., Los Angeles
A: A lawyer can act in his or her official capacity whenever they actually give someone legal advice. This recognized attorney-client relationship can even arise at a cocktail party. So, if an individual with a valid California law license is working in a non-law firm setting, and is asked and provides legal guidance, that person likely will be viewed as acting as an attorney.
He or she could also handle a case “on the side” while working at a non-law firm. For example, a friend gets hurt in a car accident, and prefers to have the lawyer handle it. During most working hours this person is an engineer, but also is licensed as a California attorney. Thus, he can serve as a lawyer on the accident case.
Q: My friend went to an attorney, gave her the file, and she was to go forward with a lawsuit. No retainer agreement was signed, nor retainer yet paid, but the lawyer did prepare a complaint and sent a draft of it to my colleague for review. The lawsuit was not filed because the lawyer did not get her retainer signed nor retainer paid, but my friend thought the suit was filed. When he learned the case had not in fact been filed, it was too late – the statute of limitations had run. Isn’t there a slam dunk malpractice claim here?
-R.W., Lomita
A: You are asking two separate questions: First, did an attorney-client relationship arise? The California Supreme Court in a case entitled Lister v. State Bar, found an attorney-client relationship arises in circumstances akin to what you describe because the client understood that the lawyer was working on the matter, and the lawyer did in fact perform work on the case. It could be ruled that the lawyer had a duty to go forward with filing the case on a timely basis, and that malpractice occurred because the suit is now time barred.
The second question, however, is whether your client suffered damages. A successful malpractice case turns not just on a lack of due care, but that the lawyer’s carelessness was the proximate cause of provable damages. Can it be said with reasonable certainty that your friend would have won the case, or otherwise had a favorable outcome?
California Bar
The California State Bar’s website provides guidance on submitting complaints against an attorney, among other items, including a variety of helpful brochures on legal matters (such as Wills, Immigration, and Finding a Lawyer). For more information, go to calbar.ca.gov
Ron Sokol is a Manhattan Beach attorney with more than 35 years of experience. His column, which appears on Wednesdays, presents a summary of the law and should not be construed as legal advice. Email questions and comments to him at RonSEsq@aol.com or write to him at Ask the Lawyer, Daily Breeze, 21250 Hawthorne Blvd., Suite 170, Torrance, CA 90503.