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After the Bar

Practice Management

Possible Ethical Pitfalls When Giving Friendly Advice

Melissa "Missye" Selman Scott

Possible Ethical Pitfalls When Giving Friendly Advice

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Hey, you’re a lawyer. What do you think about . . . ?

There is possibly no other phrase that makes lawyers, young and old alike, shudder as they wait to hear what question will fill that ellipsis. We have all been there: chatting with friends at a cocktail party, the extended family gathering, or watching our child’s little league game. As lawyers, we have a responsibility to use our knowledge to assist our community in understanding the rule of law and our justice system beyond the direct outcome of a particular case they saw on the news.

However, more frequently, that question is seeking advice on the particular legal issue of the inquirer. Usually, that question seeks free legal advice, though sometimes the question can lead to paying work. We can also find ourselves in potential ethical trouble regardless of whether a formal attorney-client relationship is later formed. An implied attorney-client relationship can occur if the prospective client reasonably relied on your legal advice. Even if you later clarify that you will not take on the representation, if you received information and gave advice, the duties of competency and confidentiality may still attach in a limited fashion. You also could inadvertently create a conflict of interest.


The very first Rule of the Model Rules of Professional Conduct governs competence. While the rule certainly anticipates that a lawyer can achieve competency during a representation through study, that opportunity is not available in the buffet line or standing on the sidelines of a youth soccer field. Are you a transactional lawyer being asked a question about divorce or child custody? Are you an estate lawyer being asked about a DUI charge? If the first thought you have upon hearing the question is, “I think I remember something about that from a law school class,” it is probably best to deflect the question. Members of the public often do not realize how specialized particular areas of the law can be. If you give your friend or family member the wrong legal principle, it may lead them to take action or refrain from acting in a way that is detrimental to their legal matter.


What about when the question asked is in our practice area? Maybe it is even a matter we might be interested in taking. Model Rule of Professional Conduct Rule 1.18 offers guidance for handling prospective clients and can help us maintain confidentiality and manage conflicts in what should otherwise be social settings. As part of the build-up to their question, the inquirer will relate to you a series of events and disclose information. With a prospective client, your goal is to limit that disclosure to only the necessary information to determine if you might want to take on a representation. If so, whether you can do so without a conflict of interest. Whether or not you ultimately take on that representation, you will owe a duty to protect any information learned to the same extent as if that person were a former client.

Conflicts of Interest

Another pitfall with the solicitation of legal advice in a social setting involves conflicts of interest. We routinely run conflict checks in our firms before we take on a new client, so for all you know, the party adverse to your friend or family member has already met with and hired someone in your firm. Or your law partner is receiving the same inquiry from the adverse party on a tennis court across town. Outside the office, neither of you likely can access your firm’s system to check for conflicts. Your firm could be disqualified from representing either side under Model Rule 1.18(c). You may be able to work through the conflict with waivers and screening, if allowed in your jurisdiction, under Rule 1.18(d).

Whenever greeted with “Hey, you’re a lawyer,” the best response is often, “Aww, I’ve clocked out for the day already, but here’s my card if you want to discuss your matter in the office.”