concurring in part and dissenting in part.
The facts of this case are not complicated. Markoff wished to open a bar. To do so, he borrowed $30,000 from Franko. He told Franko he would have Mitchell, a lawyer, prepare the legal papers necessary to protect her interest. Markoff contacted Mitchell and gave him the information needed to prepare the promissory note. He did not ask Mitchell to do anything to protect the interests of Franko. He simply asked Mitchell to prepare a legal document evidencing the contemplated loan. Mitchell was not asked to prepare anything which would secure payment of the debt by collateralizing property owned by Markoff.
After signing the note, Franko gave Markoff a check for $30,000. When Markoff failed to make any payments on the note and left town, Franko obtained a default judgment against Markoff. Since she was unable to collect on the judgment, she now seeks to recover the money from Mitchell based upon an alleged attorney-client relationship between her and Mitchell which arose the day she went to Mitchell’s office with Markoff to pick up the promissory note. The spotlight in this case, therefore, is necessarily on that brief meeting. In my opinion, the few words casually exchanged between Franko and Mitchell could not reasonably make Mitchell liable as a lawyer to Franko either in contract or tort. Therefore, I concur with the portion of Judge Greer's opinion rejecting tort liability and disagree with the portion that holds there are sufficient facts to sustain contract liability based upon the supposed attorney-client relationship.
The cases brought to our attention deal, for the most part, with breaches of the attorney-client relationship in situations where there is no question that the relationship existed. Here, the issue is whether an attorney-client relationship was established in the first instance. If it was, then it may have been breached because Mitchell did not “protect” Franko’s interests, nor did he try to. Simply put, if Mitchell was Franko’s lawyer, he no doubt would have advised Franko to insist on security for the repayment of the loan. However, Franko cannot recover losses stemming from her inability to collect on the promissory note prepared by Mitchell absent an attorney-client relationship.
An attorney-client relationship is a contractual relationship. It is created by an offer or request by the client and an acceptance or assent by the attorney, or vice versa. The contract may be express or implied from the conduct of the parties. 7A C.J.S. Attorney & Client § 169 at 249, 250; Zych v. Jones, 84 Ill.App.3d 647, 40 Ill.Dec. 369, 406 N.E.2d 70 (1980). The contract of employment cannot be created by one party alone. Zych v. Jones, 84 Ill.App.3d at 651, 40 Ill.Dec. 369, 406 N.E.2d at 74. The Arizona Supreme Court decision in Matter of Petrie, 154 Ariz. 295, 299, 742 P.2d 796, 800 (1987) sets forth elements of an attorney-client relationship:
*403An attorney-client relationship does not require the payment of a fee but may be implied from the parties’ conduct. 7 Am.Jur.2d Attorneys at Law § 118 (1980); In re McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330, 1334 (1983). The relationship is proved by showing that the party sought and received advice and assistance from the attorney in matters pertinent to the legal profession. 7 Am. Jur.2d Attorneys at Law § 118. The appropriate test is a subjective one, where “the court looks to the nature of the work performed and to the circumstances under which the confidences were divulged.” Alexander v. Superior Court, 141 Ariz. 157, 162, 685 P.2d 1309, 1314 (1984), citing Developments of the Law—Conflicts of Interest in the Legal Profession, 94 HARV.L.REV. 1244, 1321-22 (1981). An important factor in evaluating the relationship is whether the client thought an attorney-client relationship existed. Alexander, 141 Ariz. at 162, 685 P.2d at 1314. The relationship is ongoing and gives rise to a continuing duty to the client unless and until the client clearly understands, or reasonably should understand that the relationship is no longer depended on. In re Weiner, 120 Ariz. 349, 352, 586 P.2d 194, 197 (1978).
In my opinion, there is no reasonable evidence of an express or implied contract of employment or attorney-client relationship between Franko and Mitchell. Judge Greer and Judge Grant find to the contrary relying on the fleeting exchange which took place in Mitchell’s office. Franko gave her version of this meeting in her deposition, the key portions of which are set forth:
[Counsel for Mitchell]
Q. All right. Was there any ... reason ... that led you to believe that Mr. Mitchell knew that you were regarding him as your attorney and that you were regarding yourself as his client? [Counsel for Franko]
Are you referring to any of the conversations that took place in the office? [Counsel for Mitchell]
That’s correct.
[Franko]: Well, Mr. Mitchell told me that regarding the term life insurance that Mr. Markoff should have the monthly payment — he wanted it set up in such a way if Mr. Markoff could not make the monthly payment so that it was sent to me so I could make it and keep the insurance policy in force. He told me that that would eliminate possibly the loss of the insurance through negligence of payment or something like that.
Q. Was there anything else that took place during the course of your conversation that led you to believe that Mr. Mitchell was acting as your attorney in connection with preparing this promissory note?
A. Well, he never said he was not.
Q. Was there anything else said by anyone, Mr. Mitchell, Mr. Markoff or yourself during the course of this meeting which reinforced your belief that Mr. Mitchell was acting as attorney for you personally?
A. I asked Mr. Mitchell if the promissory note was legal, if it had everything it should have. And he said, yes, it did. I asked him what I should do with it, and he told me to keep it in a safe place.
Q. Was there anything else besides that during the course of your meeting that led you to believe that Mr. Mitchell was undertaking the representation of you personally?
A. Well, he handed me the promissory note to read after it had been typed and I read it.
Q. Was there anything else besides everything you have previously described that led you to believe that Mr. Mitchell was representing you?
A. He asked me if the note had everything in it that had been wanted in it and I said, yes.
I do not believe this short conversation can be escalated into an attorney-client relationship, especially in light of Franko’s previous experience with attorneys. It is *404unreasonable for Franko to have believed that Mitchell was her attorney in this matter. Franko had dealt with attorneys on at least two previous occasions. Franko acknowledged that on each of these occasions fees were discussed as a preliminary matter before representation began. Yet, Franko never discussed fees with Mitchell. Additionally, as the deposition testimony shows, Franko did not receive legal advice from Mitchell. The first comment he made had to do with life insurance. It was not legal advice and did not establish an attorney-client relationship. It informed Franko she could arrange for premium nonpayment notices to be sent to her. The second comment was that the note was legal and it “had everything it should have.” Mitchell’s answer does not make Franko his client, even though Franko may have believed Mitchell had given her a legal opinion as his client at that moment. From the standpoint of Mitchell’s representation of Markoff, the note had everything it should have. The third comment was that Franko should put the note in a safe place. Obviously this does not create the relationship Franko asserts.
In my opinion, Mitchell ought to have stated to Franko he was not acting as her lawyer. Had he done so, it is possible she would have taken steps to protect herself and this suit would not have followed. Yet, his failure to inform her that he was not her attorney does not make him liable to her for the money Markoff borrowed and did not repay. This is true even though Markoff led Franko to believe Mitchell would act to protect her. Mitchell was unaware of what had been said to Franko. From Mitchell’s standpoint, Markoff was his only client. Accordingly, I would affirm the trial court’s grant of summary judgment.