COMMENTARY | COLUMNISTS | DAVID CAMERON CARR

Beware of pitfalls when representing family, friends

One of the unexpected burdens of admission to practice law is your nomination as the family lawyer. Family and friends, some perhaps that you have not spoken to in years, will suddenly look to you to provide them with legal advice and, sometimes, representation, almost always for little or no fee.

After all, they are family or friends, and they may have helped pay for law school or given you moral support along the way. It is now expected that you will help them. After all, you are someone they know and trust, and all clients want to have a lawyer that they trust.

For this reason, it is extremely difficult, sometimes impossible to say no when family and friends approach a lawyer about representing them. Difficult as it may be, there are good reasons for saying no to family and friends when they approach you to handle their legal matters.

One of the chief reasons is that lawyers owe their clients the fiduciary obligation to exercise independent professional judgment. ABA Model Rule 2.1 states that “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.”

While there is no exact counterpart in the California Rules of Professional Conduct, the ABA Model Rules are persuasive authority on the issues not fully discussed in our California Rules. The fiduciary duty that you owe your client is not diminished when that client is family or friend.

Independent judgment means that when your client is wrong, you must tell him or her. Sometimes you must go beyond this advice and decline representation at all.

While many non-attorneys (and some attorneys) may think of attorneys as “hired guns” employed solely for the purpose of advancing their client’s interests, we have an obligation to decline to represent clients with claims or defenses not warranted under existing law and not supportable by good faith argument to modify the law, or when they wish to take actions without probable cause solely for the purpose of harassment or injury (Cal. Rule Prof. Cond. 3-200, 3-700(b); ABA Model Rule 3.1).

Delivering this message to a family member or friend can be difficult, so difficult that you may not be able to do it effectively, or at all. Perhaps even worse, the relationship may affect your analytical objectivity so that you do not even see the problem. Most non-attorneys do not appreciate the highly specialized niches of modern law practice.

Family members or friend may not realize that you know little more than they about certain areas of law when they ask you to take a “quick look” at the contract they are contemplating or the form testamentary documents downloaded from a “fill in the blanks” website. Representing family or friends may result in incompetent representation (Cal. Rule Prof. Cond. 3-110(A)) without the attorney even being aware of it.

Representation of family members or friends may also require written conflict waivers under Cal. Rules Prof. Cond. 3-310(B). Read this Rule carefully before considering such representation!

Many State Bar complaints have had their genesis in an attorney’s representation of a family member or friend. Before you say yes to such representation, think of all the good reasons you have to say no. It may difficult, but it may help preserve your good relations with family and friends.

Carr is an attorney in private practice in San Diego. Since 2001 he has specialized in representing attorneys involving legal ethics and the law of lawyering. After practicing in business litigation and commercial law, Carr spent 12 years as staff attorney, discipline prosecutor and manager at the State Bar of California, before returning to private practice 10 years ago.

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