Can An Attorney Represent A Family Member?

The relationship between a lawyer and their client is one built on trust, confidentiality, and professionalism. When it comes to legal representation in family law cases, one question often arises: can an attorney represent a family members? Answer is yes, a lawyer can represent a family member in legal matters. But when it comes to representing family members, the situation becomes complex, raising ethical concerns and potential legal complications.

Benefits of Hiring a Lawyer to Represent Family Members

Looking for hiring an attorney to representative, there are many benefits to hiring in family law matters. Some of these benefits include:

• Family law is a complex law area requiring specialized knowledge and experience. Lawyers specializing in family law have the expertise and experience to navigate these complex issues.
• Family law matters can be emotionally charged and stressful. A lawyer representing a family member can provide emotional support and guidance throughout the legal process.
• Lawyers representing family members can give accurate advice and counsel, free from emotional biases or pressures from other family members.
• Family law matters often involve negotiation and settlement discussions. Lawyers representing family members have the negotiation skills to reach favorable client settlements.
• Sometimes, family law matters may require a trial. Lawyers representing family members have trial experience and can effectively represent in court.

Pros & Cons of working with a Family member

Can An Attorney Represent a Family Member?

Can An Attorney Represent a Family Member?

Generally, a lawyer can defend a relative or represent a family member in or outside the court, if the courts will not interfere with litigants who represent themselves. However, there are exceptions to this rule, which are found in the rules of professional conduct of each provincial and territorial law society.

During court cases with family members, sometimes a potential conflict of interest may arise. In such cases, the lawyer may have to limit their legal engagement with the client-relative. A lawyer may feel a duty of loyalty to a friend or relative, but they also have the duty of loyalty to the legal profession.

“There are many risks in representing a family member, it’s risky because you already have a relationship, which can impact on your ability to give competent, candid, objective legal advice”

says Juda Strawczynski, director of practice with LawPRO, the professional liability insurer for Ontario’s lawyers.

Below are some risks associate while representing a family member:

Insurance risks

There is a risk that the lawyer may not be insured to act on behalf of family members. This applies even if the law society’s rules don’t specifically prohibit it.

For example, a lawyer settles a family member’s personal injury claim, and is later sued for professional negligence for mishandling the case. Applying this exclusion, the lawsuit against the lawyer won’t be covered because its payment would directly benefit the lawyer’s family member.

Professional risk

Another risk in representing family and friends is that a lawyer may take on a legal matter in an area of law outside of their capacity, just to be accommodating.

“In some cases, the lawyer may be asked to act for a family member even though the lawyer doesn’t have experience in the area of law,” “It’s always safer for lawyers to avoid dabbling in new areas.”

“We’ve all heard relatives say, ‘You’re a lawyer, of course you know how to draft a will.’ But if you spend all your time doing intellectual property or business law, your memory of what’s involved in drafting a will may date back decades,”

Chester says.

Payment and client intake risks

There are also risks to the client intake process and payment of fees when a lawyer defends a relative or a close friend. Because of this prior close relationship, there might be too much informality which results in some important steps in the client intake process not being done.

In addition, there can be some awkward moments between the two regarding how the lawyer will be paid. The friend or family member may expect a “friends and family” discount and may not be prompt in paying whatever fee is negotiated, or not pay at all.

On the side of the lawyer, it’s likely harder to “fire” a client who is a relative or close friend when things go south.

Risks in confidentiality of shared information

There may also be risks in confidentiality if a lawyer defends a relative or a close friend. The relationship between them may be affected because the legal matter is a private matter, or a sensitive case involving family law.

Lawyers are bound by the strict confidentiality of all information acquired during the professional relationship, except for certain cases. This is according to the Rules and Codes of Professional Conduct of the provincial or territorial law societies.

However, there can still be risks as to this confidentiality rule because of the close relationship between the lawyer and the client. In situations such as social gatherings, some sensitive information might be shared more widely. This should not have happened.

The Possibility of Conflict of Interest

When legal disputes involve family members, the risk of conflict of interest can arise, posing a significant challenge to professional conduct. In such instances, for example, a lawyer representing a family in a divorce case might graduate from impartial advisor to conflicted participant. The lawyer may feel pressure to side with their family member or to compromise their professional judgment to maintain a good Relationship With Their Family Member.

Although most authorities do not technically restrict lawyers from representing family members, they urge attorneys to have the necessary skills and avoid being negligent. 

The Code of Professional Conduct published by the Canadian Bar Association addresses concerns of actual and apparent conflicts of interest. 

Law Societies’ Code or Rules of Professional Conduct

The provincial and territorial law societies have their own Code or Rules of Professional Conduct, which outline if a lawyer can defend a relative or not. These Codes or Rules will apply when a conflict of interest arises with family members or friends.

Here are some examples of what these law societies’ Codes or Rules say about conflicts of interest when defending a relative, family member, or friend:

• In Ontario a lawyer must be honest and candid when advising clients and they’re prohibited from acting when there is likely to be a conflict of interest. 
• In British Columbia the close personal relationship may jeopardize the client’s right to have all information concerning their affairs held in strict confidence. 
• In Saskatchewan a lawyer can advise and defend a relative or friend because a relationship by itself does not determine conflict of interest. However, it is best to refuse the client if:
  • the lawyer and client have a close relationship
  • the legal matter is hostile
  • the lawyer cannot remain professional and objective
• In California, the State Bar’s rules prohibit such representation except in exceptional circumstances with written informed consent.
• New York takes a slightly more permissible stance, noting that family ties do not automatically prohibit representation, but the attorney has the burden of proving no impairment of professional judgment.
• The District of Columbia Bar states concurrent conflicts are usually present in such representation, but allows it with informed written consent.
• Texas ethics opinions indicate representation of family members is not categorically prohibited, but should be avoided due to risks.
• In Florida, a lawyer is specifically prohibited from preparing wills for family members, but other representations are assessed case-by-case.

Case Studies and Real-Life Examples

Case Studies and Real-Life Examples

In Zaldin v. Zaldin, the Superior Court of Justice applied Ontario’s Rules of Professional Conduct to determine a conflict of interest. The Court ruled that a lawyer must withdraw from representing his nephew (the husband in a custody dispute) due to his close personal and business relationships with his nephew and his brother, who is also a lawyer at the same firm. The standard for removing a lawyer is based on whether a reasonably informed member of the public would find it necessary. The appearance of impropriety in family disputes can warrant a lawyer’s removal.

In Windsor-Essex Children’s Aid Society v. B.D., the Court of Justice ruled that a lawyer cannot represent his daughter due to his personal and emotional involvement with her and her child. The Court reiterated its inherent right to remove a lawyer from a case.

A New York attorney represented his brother in divorce proceedings against his estranged sister-in-law. Family pressures impaired his ability to provide unbiased counsel or properly handle sensitive negotiations with the sister-in-law.

A lawyer provided legal services in a child custody dispute involving her niece. Her personal involvement and familial interests obscured her professional obligations and judgment.

An attorney took on his father’s wrongful termination case. During arbitration, he realized his father had committed workplace misconduct that undermined their legal position, but struggled separating familial and client interests.

Tips for lawyers when representing a relative or close friend

If a lawyer decides to take the case of their friend or family member, here are a few points to consider:

Formalize the relationship

This may include:

• opening a file on the matter
• drawing up a retainer letter
• handling communications in writing
• discussing fees (if any) at the start, and giving any discounts at the end

Maintain usual practice standards

Schedule a meeting to talk about the case. Avoid talking about the case during family gatherings or in an informal telephone conversation. Check for any potential conflict of interest.

Promptly decline

It is best of lawyer interest to decline the family member for acting on his behalf, by letting them know that you simply don’t act for family.

Refer them to other lawyers

Explore a reduced billing rate with lawyers at the same firm for friends or family clients. They could also be referred to another firm where a reduced rate might be offered as a professional courtesy. 

Conclusion

Having a lawyer in the family allows them to obtain free or almost free legal counsel. They are often the go-to when there are legal issues that family members face. Family law matters can be emotionally charged and difficult to navigate. Lawyers have an obligation to avoid conflicts of interest with current or former clients, so they must determine whether representing a family member will violate this obligation.

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