In Berry v Utica Natl. Ins. Group ;2009 NY Slip Op 06935 ; Appellate Division, Fourth Department we see a situation in which plaintiff was suing Utica National Insurance Group and evidently there was communication between plaintiff and the defendant law firm. "evidence that plaintiff contacted defendant concerning his dispute with Utica National does not establish the existence of an attorney-client relationship absent further evidence of an "explicit undertaking [by defendant] to perform a specific task" (Wei Cheng Chang v Pi, 288 AD2d 378, 380, lv denied 99 NY2d 501; see McGlynn v Gurda, 184 AD2d 980, appeal dismissed and lv denied 80 NY2d 988).

How do these situations arise? Generally, there are telephone calls, and even letters between the attorneys and the plaintiff over starting a law suit. We cannot say what the evidence in this case was, but in typical cases, either the attorney takes on tasks 1,2,3 but not 4 (where 4 is the case sued upon), or there are "agreements to agree" over a retainer agreement that never jell.

One solution that is raised in almost every advice article for attorneys is a retention/no retention letter that states affirmatively, for example, that "we are not retained nor will we be representing you in the -______________ case.