Can I Represent a Family Member in Court
Some tips for dealing with relatives who want legal advice
For many people, a lawyer in the family is often seen every bit a style to get free, or about free, legal advice. Merely tin a lawyer represent a family unit member in court, or outside? Should a lawyer represent a family unit member?
The answer to the outset question is a qualified yes. Courts do non typically intervene in allowing a family litigant to cull their lawyer, only as they generally don't interfere with litigants who represent themselves. However, there have been exceptions.
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The answer to the second question is a bit cloudier. "There are many risks in representing a family fellow member," says Juda Strawczynski, director of practice with LawPRO, the professional person liability insurer for Ontario'south lawyers. "It's risky because you lot already have a relationship, which can impact on your ability to give competent, candid, objective legal advice." A lawyer may feel a duty of loyalty to a friend or relative, just they likewise have the duty of loyalty to the legal profession.
And then, if you're a lawyer who Aunt Minnie has asked to handle her real manor transaction or ready her will, or if you're the daughter or son of a lawyer who is going through a nasty divorce and you desire communication or representation from Mom on a legal matter dealing with family law, here are a few things to consider:
How about a potential conflict of interest?
Simon Chester, counsel for conflict and regulatory matters at Gowling WLG, says that "most regulators don't actually prohibit acting for family members, although they insist that lawyers exist competent and avoid negligence." The Canadian Bar Association Lawmaking of Professional Conduct too deals with wide issues of real and perceived conflict of interest just doesn't specify when a lawyer can stand for a family member in courtroom.
Some police societies' codes more specifically take on the consequence of when a conflict of interest arises with family members or friends.
The Law Lodge of Saskatchewan says lawyers can advise friends, family members, spouses, and other people with whom they are acquainted. The social club's conduct code also says that "a lawyer is not in a conflict of interest but because the lawyer is representing a family member or a friend." However, it also points out that "if the relationship is shut and the matter acrimonious, the lawyer may be unable to remain professional person and objective and, in such cases, it is best that the lawyer does non act as counsel."
Ontario'due south law social club says a lawyer must be "honest and candid" in advising clients and prohibits interim in situations where there is likely to exist a conflict of interest. "Where a lawyer is interim for a friend or family member, the lawyer may accept a conflict of interest because the personal relationship may interfere with the lawyer's duty to provide objective, disinterested professional advice to the client."
The Law Society of British Columbia also describes how the judgment of a lawyer who has "a shut personal relationship, sexual or otherwise, with a client" may be compromised. "The relationship may obscure whether certain data was acquired in the course of the lawyer and customer relationship and may jeopardize the customer's right to accept all information concerning his or her affairs held in strict confidence."
When might information technology exist okay to represent family unit?
Chester says that if you lot are a specialist, and the piece of work doesn't involve family sensitivities, information technology's probably okay. "For example, if a lawyer has a reputation in the customs for dealing with driving while impaired cases, the fact that she is doing it for a relative is irrelevant."
Similarly, Chester says if the chore is essentially navigating a government system or registry, information technology shouldn't pose a problem. "Then, somebody who does a lot of business firm buy and sales would be perfectly fine treatment the legal aspect of a house purchase for a relative."
The ane thing to avoid is highly contentious litigation, particularly when the family interests are divided. Says Chester: "Information technology would be absolutely inappropriate for a family member to endeavor and litigate a custody dispute," he says. "The courtroom would have real doubts virtually the lawyer'south independence and objectivity."
Two Ontario cases reflect the potential for disharmonize. In Zaldin v. Zaldin, the Superior Court of Justice ruled that a lawyer representing the hubby in a custody dispute had to withdraw because the he was the husband'southward uncle and had a close personal and business concern human relationship with hubby'south father. In Windsor-Essex Children'south Aid Society v. D.(B.), the Courtroom of Justice ruled a lawyer could not represent a respondent because he was the respondent'southward father and found to exist personally and emotionally involved with both his daughter and her child.
Advising a family unit member tin can exist a risky concern
And so, when does representing family unit or friends become risky for a lawyer? For starters, a lawyer may not exist insured to act on behalf of family members, fifty-fifty if the regulator's rules don't specifically forestall information technology.
For case, in B.C., an exclusion in the province's compulsory professional person liability insurance policy denies coverage for a merits arising from an error where the payment would direct or indirectly benefit the lawyer, their family unit, or the constabulary firm. Family members are defined equally a spouse (including a common-law spouse), children, parents, and siblings.
Then, suppose a lawyer settles a family member'south personal injury claim and is afterward sued for professional negligence for mishandling the case. In that instance, the lawsuit confronting won't be covered considering payment of it would directly benefit the family member.
Another hazard in representing family and friends is that a lawyer may take on a legal matter in an surface area of law outside of their capacity, simply to be accommodating. "In some cases, the lawyer may exist asked to act for a family member even though the lawyer doesn't have feel in the area of law," says LawPRO's Strawczynski. "Information technology's e'er safer for lawyers to avoid dabbling in new areas."
The message hither is that a lawyer representing family in court doesn't always win like Joe Pesci does in "My Cousin Vinnie." That's the 1992 business firm where a Brooklyn personal injury lawyer who failed the bar test five times and has no trial feel still manages to get his cousin off on a first-caste murder accuse.
Says Chester: "In that location are always risks that a lawyer will fall short of the normal standards they would employ to any other work when representing a relative." He adds that 'we've all heard relatives say, 'You're a lawyer, of class yous know how to typhoon a volition.' But if you spend all your time doing intellectual property or business organization police force, your memory of what'southward involved in drafting a will may engagement back decades."
Payment may be awkward
Taking on a family member or friend as a customer can lead to some bad-mannered moments regarding how a lawyer will exist paid. The friend or family unit member may expect a "friends and family" discount and may non exist prompt in paying whatsoever fee is negotiated, or not pay at all. And, of grade, information technology's likely harder to "fire" a client who is a relative or close friend if things go due south.
On the lawyer'due south side of the equation, there might be too much informality due to the shut relationship. Files may not exist opened, steps might be omitted, correspondence might non be upwards to appointment, and agreements and instructions not put in writing.
A lawyer doing a favour by representing a family member or friend for free or at a reduced rate might not apply the aforementioned conscientiousness they would give a total-fee client.
Other possible risks of having a family fellow member as your lawyer
Someone intent on hiring a lawyer who happens to be a family member or friend should also consider its affect on the human relationship. If it is a private or embarrassing matter, or a sensitive family unit law case, will it be challenging to deal with them in social situations? Is there a take chances that the lawyer may spill the beans on confidential information? All of this could crusade the relationship to deteriorate.
Chester also points out that "simply because at that place's a lawyer in your family doesn't hateful that they are the best person to help you – you lot wouldn't ask a paediatrician in the family unit to do a heart performance, would you?"
He adds, "acquit in mind that you demand to await at the feel and skill of your relative. And if it'southward something that'southward critical, you volition exist better off with a specialist." In improver to skill and feel, you plow to lawyers for their independence and objectivity. "Lawyers need to be able to give yous bad news," Chester says.
It may be difficult, just just say no
Strawczynski says the safest matter for a lawyer to practice when asked past a family member is "to decline to human action for family unit members by letting them know that yous simply don't act for family." Many large firms have policies prohibiting their lawyers from acting on behalf of friends or relatives.
If appropriate, Strawczynski says, "refer them to other legal professionals for help." This could mean exploring a reduced billing rate with lawyers at the aforementioned firm for friends or family unit clients, or referring them to another firm, where a reduced rate might be offered as a professional person courtesy.
Chester agrees, pointing out the best way to handle the state of affairs "is to be aboveboard about the complexity of what's involved and the need to have a expert lawyer advising the family unit fellow member." Have practical suggestions for where the family member could get help by giving directions to public legal information sites.
"It's always a proficient idea to have some names of lawyers bachelor to offer, rather than having a family fellow member reduced to googling the names of lawyers in the neighborhood, who is prominence on the Internet may not necessarily reflect the skill or competence. "
Some tips for dealing with family unit members who want legal communication
If you decide that you will take on legal work for a friend or family member, here are a few things to consider:
- Schedule a meeting to specifically talk about the case
- Don't talk about the case during family gatherings or in an informal telephone chat
- Maintain your usual practice standards
- Open a file on the matter, accept a servant alphabetic character drawn up
- Do a cheque for whatever potential conflict of interest
- Communicate how the case is going - preferably in writing
- Discuss fees, or whether this is one, at the start. Requite any discount at the end
- Check with your firm that it is okay to represent friends or family
- If a sole practice, check with some other lawyer
Says Chester: "If you are going to correspond a family unit member, retrieve to formalize the relationship."
The human relationship between you and a relative or friend "lacks the professional distance you have with other clients, and the emotional connectedness tin cloud your sentence."
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Source: https://www.canadianlawyermag.com/resources/practice-management/can-a-lawyer-represent-a-family-member/361469
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