By David Cameron Carr
Graduation from law school and admission to the bar is a happy event for the new lawyer. It is also a happy event for the new lawyer’s family and friends, many of whom have supported the new lawyer through the long and strenuous journey to that special status, usually emotionally, often financially.
But it is a relationship-altering event. All lawyers experience the phenomenon of suddenly being “the family lawyer.” It is now expected that the family lawyer will be available to provide advice and assistance to members of the family. Sometimes friends share that expectation. Many of us have heard the phrase from clients and prospective clients: “I talked to a good friend of mine and she says …” It is also expected that this help will come with no price tag.
Of course, we are willing to help. That is what friends and family members do. They help each other. But with those changed expectations and our willingness to help, dangers are created. Dangers for the lawyer and dangers for the client.
Clients think of lawyers as zealous advocates for their interests and that is true. But lawyers are also supposed to be sources of independent dispassionate judgment in providing advice and representation. American Bar Association (ABA) Model Rule of Professional Conduct 2.1 captures the concept:
“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”
Comment 1 to the rule illuminates the problem with advising or representing family or friends:
“A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”
There are times when lawyers must tell clients that there is no way to accomplish the client’s objectives. There are times when lawyers have to say no to their clients. The pre-existing emotional relationship the lawyer has with a family member or a friend can interfere with the ethical duty the lawyer has to communicate unpleasant truths and render candid advice. We all know that it can be difficult to say no to a family member or friend.
These relationships can also make it very difficult for the lawyer to perform competently. California Rule of Professional Conduct 3-110(B) defines competence:
“For purposes of this rule, ‘competence’ in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.”
Emphasis added. The requirements set forth in sub-section 3 are often overlooked. No California lawyer has been disciplined for undertaking representation without being emotionally ready.
But here is a real-life example. In 1992, my father was suffering from declining cognition due to Alzheimer’s disease. As the family lawyer, I was tasked with drafting durable powers of attorney and other documents allowing my mother to make decisions on his health care. I would take the paperwork out of my desk drawer and begin to work on it, only to become so emotional that I could not work on it. After a month of false starts, I did the smart thing and hired an experienced lawyer to complete the forms.
My story also illustrates another competence issue in advising family and friends. Non-lawyers often don’t appreciate the degree of specialization in the legal profession. I am an ethics lawyers; I know a lot about legal ethics and a little about many areas of law. Yet, I am constantly called upon by family members and friends to give them advice about everything from real estate transactions to employment issues, areas where I know just enough to be dangerous. In the lawyer’s desire to help a family member or friend, the lawyer can commit to practicing in areas where the lawyer does not have the necessary learning and skill.
Lawyers I have represented in discipline complaints have told me that the complainant “was not a client but just a friend that I was trying to help.” But there are no “clients-lite.” The fact that the client is a family member or friend that is not paying for the lawyer’s services does not change the lawyer’s professional responsibilities in any degree.
Sometimes lawyers will undertake to represent friends or family for no fee because they feel they can’t say no to this person that they are emotionally bound to (and those emotions may not all be positive). This creates resentment — conscious or unconscious — on the part of the lawyer, resentment which impedes performance. This “client-lite” will tend to be moved to the bottom of the to-do list, and may be left off altogether.
In declining to represent family or friends, I use the analogy of a surgeon: If you were a surgeon, would you want to be the one operating on your spouse, mother, father, friend or whoever? A hard and fast rule against representing family and friends probably doesn’t work for every lawyer. But if you undertake such a representation, you need to be constantly on guard against the potential dangers.
David Carr is a solo practitioner.
No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.