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An attorney's liability for malpractice is limited to some duty owed to a client. Where there is no attorney-client relationship there is no breach or dereliction of duty and therefore no liability. An attorney-client relationship need not rest on an express contract. An attorney-client relationship may be implied when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance. In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it. Where reasonable persons could differ as to the existence of an attorney-client relationship, this issue must be resolved by the trier of fact.
Injured in a fall, the plaintiff Loretta R. DeVaux wrote a letter to the defendant, Attorney Frank J. McGee, requesting legal assistance in regard to a possible tort claim. McGee did not discover DeVaux’s letter, however, before the statute of limitations had run. Thereafter, DeVaux sued McGee for malpractice, and McGee’s insurance company was impleaded as a third-party defendant.
Were there genuine issues of material fact as to whether a secretary employed in the attorney's office had actual or apparent authority on McGee’s behalf to establish an attorney-client relationship with DeVaux, which in turn would have given rise to a duty on the part of McGee to commence a timely action on a personal injury claim of DeVaux?
The court held that there were genuine issues of material fact relating to the existence of an attorney-client relationship because the secretary's actions may have been evidence of actual or apparent authority to establish an attorney-client relationship on behalf of McGee. Thus, the secretary's knowledge of the client's request for legal advice was imputed to McGee, and McGee did nothing to negate DeVaux’s detrimental reliance on the relationship the client thought had been created.