Your brother-in-law phones you about a problem involving his live-in girlfriend who’s been accused of embezzling money from the store where they both work.
The phone rings in your office. On the other line, a woman explains that her estranged husband in California wants custody of their 8 year old daughter living with her in Nevada.
You are at a barbecue following your son’s soccer game. An assistant coach sidles up to you and asks you about care problems his aged mother is having at the retirement home where she lives.
Finally, an elderly man with a real property and estate-planning problem makes an appointment and sees you for a 45-minute preliminary consultation. You decide you can’t help him because he just moved here from Montana and you’re uncomfortable advising him about the multi-jurisdictional aspects of his situation. He pays your $200 consultation fee and you refer him to another lawyer.
Getting paid does not a bright-line make.
When does someone become an attorney’s “client”? In the preceding entirely fictitious scenarios, every instance implicates an attorney-client relationship and consequently, a confidential communication. And whether you’re retained or paid isn’t relevant. That’s not the bright-line test. Instead, it’s whether or not the person consulting you does so “with a view to obtaining legal services.” 
In 2007, I wrote an article for a local bar newsletter on when a client becomes a client. This blog post is largely based on that article. And like that prior article, it’s prompted by yet another lawyer’s recent assertion that a would-be client referral “was not her client.”
Why does this matter? It matters when a client becomes a client because of the protections of the attorney-client privilege upon which clients rely. For an attorney-client privilege to be raised, an attorney-client relationship must exist. But from the foregoing examples, it is not always so obvious.
Some lawyers would argue that only the last instance, when the interviewee paid $200, did the relationship exist and the privilege attach. Still others maintain that someone becomes a “client” only when there is an express contract, that is, a retainer paid and a file opened.
Courts have grappled, too.
The court, sua sponte, rightfully gave greater weight to preserving the defendant’s right to a full and complete defense. This, despite opposing counsel’s failure to make that argument. Instead, she mistakenly maintained that a witness’s confidential communications with her lawyer about the criminal dimensions of the case had not created an attorney-client relationship protected by the privilege.
And as succinctly stated by yet another court, the attorney-client relationship is established when it is shown that a client seeks and receives the advice of a lawyer on the legal consequences of the client’s past or contemplated actions.
The Client Test.
It’s not a time limit test either as still another lawyer recently asserted. There’s no comparable dropped food, pick-up-in-5-second, germ-free rule for a lawyer to decide if she is client-free or not.
The U.S. Supreme Court weighed in on the issue in Westinghouse Electric Corp. v. Kerr-McGee Corp. when it said, “The fiduciary relationship existing between lawyer and client extends to preliminary consultation by a prospective client with a view to retention of the lawyer, although actual employment does not result.” 
In another case, the U.S. Supreme Court also held that the elements of attorney client privilege are: (1) a communication between client and counsel, (2) intended to be and in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice.
Moreover, according to the Federal Circuit, the “central inquiry” in determining whether a communication is privileged is “whether the communication is one that was made by a client to an attorney for the purpose of obtaining legal advice or services.”
The Nevada Rule.
In Nevada, when does the privilege attach? The answer is when someone satisfies the definition of “client” under NRS 49.045 as a person, corporation or other entity “who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.” The scope of the attorney-client privilege is expressly set forth at NRS 49.095,
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:
1. Between himself or his representative and his lawyer or his lawyer’s representative.
2. Between his lawyer and the lawyer’s representative.
3. Made for the purpose of facilitating the rendition of professional legal services to the client, by him or his lawyer to a lawyer representing another in a matter of common interest.
The attorney-client privilege is predicated on public policy considerations. In other words, upon the rationale that encouraging clients to make full disclosure to their attorneys enables the latter to act more effectively, justly and expeditiously, a benefit outweighing the risks opposed to truth finding.
In sum, then, applying the rules to the hypotheticals above, the party-turned-client need not have a writing, a file or have paid a fee. The party does not even have to actually hire the lawyer for the privilege-triggering relationship to be created. Prudent practitioners, then, should be wary about anonymous inquiry phone calls from would-be clients or impromptu cocktail chatter from acquaintances or friends.
Most of all, given case and statutory authority, resist being too sanguine or unduly dismissive about the possible creation of attorney-client relationships. So long as the communications are made with the prospect of obtaining advice or representation, an ethical duty has attached. Unwittingly, the lawyer may have incautiously established an ethical duty not to disclose the privileged communications to anyone and more importantly, the requirement to claim the privilege unless the client waives it.
 NRS 49.055 defines a confidential communication as one not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the client or those reasonably necessary for the transmission of the communication.
 NRS 49.045
 Todd v. State, 113 Nev. 18, 19 (1997).
 People v. Bennett, 810 P.2d 661 (Colo. 1991).
 United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358-59 (D. Mass.1950).
 State ex rel. Hyder v. Superior Court of Maricopa County, 128 Ariz. 253, 625 P.2d 316 (1981).
 Alexander v. Superior Court, 141 Ariz. 157, 162, 685 P.2d 1309, 1314 (1984).
 Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (11th Cir.) cert. Denied. 439 US 995 (1978).
 Fisher v. United States, 425 U.S. 391, 403 (1976).
 In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed. Cir.) (2000).
 Haynes v. State, 103 Nev. Adv. Op. 69 (1978).
Photo Credits: worried! by Alon at Flickr via Creative Commons-license requiring attribution; woman on grass with phone and coffee, by Kevin Ryder at Flickr via Creative Commons-license requiring attribution; elderly man, by Xavi Talleda at Flickr via Creative Commons-license requiring attribution;