“It’s never going to go well,” Arizona attorney Lynda C. Shely says about the prospect of representing anyone you are close to, including family members and friends. Shely, the immediate past chair of the ABA Standing Committee on Ethics and Professional Responsibility works in private practice and has advised more than 2,500 law firms around the country on legal ethics matters.
“What friends and family don’t understand is just giving them a little bit of advice creates an attorney-client relationship,” Shely says, “and a young lawyer can be sued if the advice they give is wrong.”
A friend or family member asking for legal advice can make for a complicated situation, especially because “young lawyers typically want to flex the knowledge they learned from law school or from their limited time as a lawyer,” says Khasim Lockhart, an associate at Frankfurt Kurnit Klein & Selz P.C. in New York whose focus areas include legal ethics and professional responsibility.
The possibility of inadvertently creating an attorney-client relationship is a very real risk. “When you start giving advice about how to deal with somebody’s particular legal problem and not just giving referrals to sources of assistance, the risk is that you are going to inadvertently create a lawyer-client relationship—because the person is going to understand you are giving them assistance about their particular problem that they can rely on,” says Bruce A. Green, the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics and the current chair of the ABA Standing Committee on Ethics and Professional Responsibility. This may violate your duty of competence if it relates to something outside your realm of expertise under Rule 1.1 of the ABA Model Rules of Professional Conduct.
“As a young lawyer, you want to be helpful to anyone, especially family members, but at the same time, the biggest risk from helping family members is that a lawyer can end up dabbling,” Lockhart says. “What I mean by dabbing is a lawyer having limited involvement in a subject matter and giving a few pieces of advice based on general knowledge from law school or a random case they read while simultaneously trying to avoid fully engaging in the matter. But even five minutes of advice can be truly damaging.”
Shely says young lawyers should understand that even if they think they are giving just “a little bit of advice,” say on the sidelines of their kids’ soccer game to another parent, the lawyer would likely be required to put that contact in their firm’s database as a potential client and a potential conflict under ABA Model Rule of Professional Conduct 1.18, and pursuant to their local rules which cover duties to prospective clients.
In addition to the risk of losing a friend after offering bad legal advice, a young lawyer could also be sued for malpractice. “It happens all the time,” Shely says, “and that’s not a debt you want to take on along with student loans.” Even where your firm might have malpractice insurance, if you provide advice outside the scope of your job, it may not be covered.
So what is a young lawyer who specializes in labor and employment law supposed to do when a family member comes to her with a criminal defense issue?
The best thing to do is be straightforward and say, “I have no experience in that area of law, but I can find someone for you,” Lockhart says. New lawyers and seasoned lawyers alike are familiar with other attorneys at their firms or through bar associations and can connect a family member or friend to one with the experience he or she needs, he adds.
If a young lawyer feels competent to represent someone close to them, there are no rules preventing that representation, but it must proceed the way any other representation would. “You have to do the full gamut of having them come into the office or doing a consultation virtually and sending an engagement letter,” Shely says. She also recommends that lawyers who choose to represent a friend or family member make sure to carefully limit the scope of representation in a written engagement letter to just that matter and not agree to represent on appeal. “Otherwise,” Shely says, “that friend or family member could mistakenly think you’re going to handle all of their legal matters for free!”
Lockhart also notes that although representing a friend or family member might feel a bit more relaxed and laid back than a more formal representation, the Rules of Professional Conduct still apply. “You don’t want to assume you will be more favored by a family member or friend if something goes south,” he says.
