What exactly does it take to form an attorney-client relationship?  When are services provided to a party susceptible of a claim of legal malpractice?

Exeter Law Group LLP v Wong 2016 NY Slip Op 32190(U)  October 26, 2016  Supreme Court, New York County  Docket Number: 161667/2014  Judge: Eileen A. Rakower tells us that:  “”To determine whether an attorney-client relationship exists, a court must consider the parties’ actions.” (Pellegrino v Oppenheimer & Co., Inc., 49 A.D. 3d 94, 99 [1st Dept 2008] [citations omitted]). “[A]n attorney-client relationship is established where there is an explicit undertaking to perform a specific task.” (Id.). While the existence of an attorney-client relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions. (Id.). See Jane St. Co. v Rosenberg & Estis, P.C., 192 A.D. 2d 451, 451 [1st Dept 1993] (holding “[t]here is nothing in the record to indicate that defendant law firm either affirmatively led plaintiff to believe it was acting on plaintiffs behalf or knowingly allowed plaintiff to proceed under this misconception.”). In order to defeat a motion to dismiss, a party must plead facts showing the privity of an attorney-client relationship, or a relationship so close as to approach privity. (Cal. Pub. Employees Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434 [2000] [affirming dismissal of legal malpractice claim for failure to plead actual privity or “a relationship so close as to approach that of privity”]). To show “a relationship so close as to approach that of privity,” or “near privity,” “[t]he evidence must demonstrate “(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance.” Cal. Pub. Employees, 95 N.Y.2d at 434. “To show ‘near privity,’ a plaintiff must allege that the attorney was aware that its services were used for a specific purpose, that the plaintiff relied upon those services, and that the attorney demonstrated an understanding of the plaintiffs reliance.” Candela Entertainment, Inc. v. Davis & Gilbert, LLP, 39 Misc 3d 1232(A) [Sup Ct 2013]. Here, taking all of the allegations as true, Defendants/Counterclaim Plaintiffs have alleged an attorney client relationship with Tan and the Tan Firm, and the engagement letter with Exeter does not flatly contradict the allegations. “