The Duty That Arises From an Engagement

Every claim against a professional starts from the same place. Before the quality of the work is examined, the claimant must establish that the professional owed a duty of care, and to whom. That duty is not owed to the world. It arises from an engagement, and its edges are set by what the engagement covered. A great many claims are resolved on this element alone, without any court reaching the question of whether the work fell short.

How the relationship forms

No writing is required to create one. A professional relationship may be express, formed by a signed retainer, or implied from conduct. The implied form is the one that generates litigation. The usual inquiry asks whether a person sought advice or assistance on a matter within the professional's field, whether the professional gave advice or undertook to act, and whether the person's belief that the professional was acting for them was objectively reasonable. Subjective belief alone will not do; a reasonable basis for it is required.

Because the test is conduct-based, several familiar situations create relationships that were never intended. A free consultation that ends with concrete advice. An accommodation for a friend. Work performed for a corporate client's officer or affiliate without a new engagement letter. A referral in which the referring professional stays involved. States requiring written fee agreements above a threshold, as California does for matters where foreseeable expense exceeds one thousand dollars, do not treat the absence of the writing as proof that no relationship existed. The consequence usually runs the other way, rendering the fee agreement voidable while leaving the duty intact.

What the engagement fixes

Once a relationship exists, the engagement's terms determine what the professional undertook. A lawyer may limit the objectives of a representation if the limitation is reasonable and the client gives informed consent. An accountant engaged to compile financial statements has not agreed to audit them. An engineer retained for foundation design has not undertaken structural review of the whole building. The engagement letter is the ordinary evidence of these boundaries, and its silences are read against the drafter more often than not.

Scope operates in two directions. It defends against claims arising from work never undertaken, which is its familiar use. It also creates exposure where the professional stepped outside the stated limits and did the work anyway, because conduct can enlarge an engagement that a document tried to confine. The practical measure is what the professional actually did, checked against what the document said would be done. A defense built on scope is strongest when the two agree.

Persons outside the relationship

The general rule confines the duty to the client. The exceptions are narrow and the states disagree about their width. Some jurisdictions retain strict privity, so that only a person in a direct relationship with the professional may sue. Others permit a claim by a non-client whom the professional's work was intended to benefit, the classic instance being the beneficiary of a will drafted so as to defeat the testator's evident intent. A third group applies a multi-factor balancing test weighing the purpose of the engagement, the foreseeability of harm, the closeness of the connection between the work and the injury, and the burden on the profession of extending liability.

Opinion letters and certified statements occupy their own category, because the professional knows a third party will rely on them. Liability there tends to follow the terms of the document and the identity of the intended recipients rather than any general foreseeability. This is why such documents recite who may rely on them and for what purpose, and why a recipient outside that recital faces a difficult claim.

The consultation that goes nowhere

A person who consults a professional about a possible engagement is a prospective client even if no engagement follows. The professional conduct rules impose real obligations on that footing: information learned in the consultation may not be used or revealed to that person's disadvantage, and a later representation adverse to the prospective client in the same or a substantially related matter may be barred. These are principally disqualification and confidentiality duties rather than a duty to have advised competently, but the line blurs when the consultation produces advice on which the person acts.

The recurring failure is the intake conversation that goes further than intended. Screening for conflicts is a different exercise from assessing the merits, and a professional who assesses the merits and declines the matter has often said enough to be held to the accuracy of what was said, particularly on a point as consequential as whether time remains to bring a claim.

Why this element decides cases

Duty is a question of law in most jurisdictions, which makes it available for early disposition. A defendant who can show that no relationship existed, or that the complained-of work lay outside the engagement, usually does so before discovery into the quality of the work begins. A claimant who cannot pin the relationship to a document must build it from correspondence, billing records, file notes and the conduct of both sides.

Two related points follow. First, the disciplinary rules and the civil standard are distinct: the rules themselves state that a violation should not by itself give rise to a cause of action or create a presumption that a legal duty was breached, though the conduct underlying a violation may still be evidence of what the standard a professional is held to required. Second, the date on which the relationship ended matters far beyond duty, because it often controls when the limitation period starts to run. Documented boundaries at the start and a documented closure at the end are the same evidence viewed from two ends, and they are equally central to defending with informed consent and client direction.