If a third party who benefits from legal work offers to pay the bill, does that make them the lawyer's client?

Plain-English summary

A longtime client (Client X) asked his lawyer (Attorney A) to prepare an antenuptial agreement to protect the family residence before his divorced parents remarried, so the estranged mother would not jeopardize his interest in the home. Attorney A drafted the agreement, which the parents signed; A never met or consulted the parents. Four months later, the parents retained their own lawyer (Attorney B), revoked the agreement, asked A to return the signed copy, and asked that the revocation be kept confidential from family members, including Client X. Client X and his siblings had agreed to pay A's bill; the parents then offered to pay it, and Client X sent an uncashed check. A asked about his duties.

The opinion concluded the client was Client X, who had a prior relationship with A, contacted A to protect his own interests, and was billed for the work. The parents' offer to pay the bill did not make them A's clients or create a confidential relationship, so B's request to keep the revocation confidential could not be honored. The committee concluded A could not establish an attorney-client relationship with the parents because it would be the same matter in which their interests were materially adverse to Client X (Rules 1.7(a) and 1.9(a)(1)), and that even if the parents paid the bill they would be paying for Client X and could not step into his position. Because the attorney-client relationship was only with Client X, A's cashing of the check would not alter Client X's position or rights.

On the signed agreement, the committee concluded that because the only parties to the antenuptial agreement were the parents, they were entitled to delivery of the signed document; but because A drafted it and received the executed copy as part of his representation of Client X, A should inform Client X of the parents' request for delivery.

Currency note

This opinion was issued in 1992, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rule 1.7 and its Comment [13]), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does paying a lawyer's bill make a third party the lawyer's client?

A: The opinion concluded it does not; the parents' offer to pay did not make them A's clients or create a confidential relationship, because they were in effect paying for Client X.

Q: Could the lawyer keep the parents' revocation confidential from the client at the parents' request?

A: No. The opinion concluded that because the parents were not A's clients, their lawyer's request to keep the revocation confidential from Client X could not be honored.

Q: Could the lawyer take on the paying third party as a new client in the same matter?

A: The opinion concluded he could not, because it would be the same matter in which the parents' interests were materially adverse to Client X (Rules 1.7(a) and 1.9(a)(1)).

Q: Who gets the signed antenuptial agreement, and what must the lawyer do first?

A: The opinion concluded the parents, as the only parties to the agreement, were entitled to delivery, but A should first inform Client X of the request because A received the document as part of representing Client X.

Background and rules framework

The opinion interpreted Rule 1.7(a) and Rule 1.9(a)(1) (a lawyer may not represent a new client whose interests are materially adverse to a current or former client in the same matter) together with Rule 1.4(a) (keeping the client informed), concluding that a third party's payment of fees does not create a client relationship (Model Rules 1.4, 1.7, 1.9).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflict of interest; current clients) / Illinois Rule 1.7(a)
• Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9(a)(1)
• Model Rule 1.4 (communication) / Illinois Rule 1.4(a)

See also

• ISBA Ethics Op. 91-26: Suing a Client-Insurer
• ISBA Ethics Op. 16-04: Of Counsel, Fees and Conflicts

Source

• Landing page: https://www.isba.org/ethics/opinions/9128