Saying ‘yes’ to family

Drrrring! The phone rings at the office, and an unexpected voice greets you. “You know what happened?” says the voice. You scour your brain in vain to recall what it could be about. What follows is a story of indignation over a fence dispute, a business deal gone sour, or — worst of all — a legal dispute with a rogue family member. “We thought,” says the appointed voice of the family cabal, “if we could only get him to listen to some sense. We wouldn’t ask you if we weren’t desperate.”
Or you’re at a family reunion. Before you can extricate yourself from small talk with a relative, the subject quickly changes. Your interlocutor starts to describe in detail something happening in his or her life. This is no longer chitchat over a cheese board, but rather a client interview.

Welcome to the world of the relative request for legal help. Or, rather, to their request for you to serve as their mouthpiece. If you were to suggest there may be another way to assess the situation, they may make you feel uncomfortable. Or worse, if you refuse to help, they can make you feel guilty for having “supported” your legal education or launch of your practice. In your head, alarm bells should now be going off.

In the other direction, you may fall victim to the unwarranted idolatry of being the lawyer in the family. You try to explain options and the importance of making reasoned decisions. “You decide for us,” they say. “You know what’s best.” In two short sentences, their problem suddenly becomes your problem. Indeed, you may even think you know what is best. Once you drink from that chalice, it’d better work out for the best, or the outcome will also be entirely down to you and the decision you made.

What to say?

The safest course of action is, of course, simply to say, “No,” and refer it to an arms-length law firm. It is not always that easy. Lawyers are human. They play integral roles in the lives of extended families. There is no absolute prohibition against acting for family. Much of it depends on your ability to draw boundaries around personal relationships.

Lawyers provide valuable advice as trusted family advisers. That is different, however, from acting as a lawyer. If, say, a bank manager or a school teacher could serve the same role, the family member is looking for something other than a lawyer-client relationship. It is often the lawyer, failing to see a problem as anything other than a legal one, who ensnares herself into an unwanted situation. When in doubt, ask the relative: “Are you asking me as a lawyer?” If the answer is “no,” then one door is closed, and another opened. The conversation can continue at a different level.

Quality of service

If the answer is “yes,” or “I’m not sure,” at least you know two doors remain open. Think of the two doors as leading to two rooms: one to your personal space and the other to your professional one. At each stage in the dialogue, take a moment to pause and think about which door you are stepping into.

If you find yourself repeatedly going back to the professional room, there comes a point at which you must pause the conversation and ensure both of you understand what is going on. There is nothing wrong with free legal advice. But once it is agreed that legal advice is what you are dishing out, two very important considerations come to mind. First, you must both understand that it is a legal problem, and you are being consulted as a lawyer. Second, just because it is free advice given to a relative does not mean the quality of the advice can be any lower than to a paying client. Remember Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., one of the keystones of professional negligence law, was a case involving free advice.

The temptation to let your professional guard down is not just a matter of quality of service. Any time you have a connection with a client separate from that of a lawyer-client relationship, you run the risk of a conflict. Any interference with your ability to provide objective, quality advice will depend on the proximity of your relationship with the client. Acting for a distant relative is not going to come with as many personal distractions as acting for an uncle, grandparent, or sibling. But whatever you do, never act for a parent. There should be a separate provision in the Rules of Professional Conduct against acting for someone who gave life to you.

‘No’ as a means of saying ‘yes’

The working title for this column was “Saying ‘no’ to family.” That may still be the intent. As I began writing on it, it became clearer there is an art to saying “no” while sounding like you’re saying “yes.” George Orwell’s doublespeak can come in double plus handy in dealing with family. The word “no” can be used to define boundaries, and is not restricted to declining help altogether. Erect enough boundaries between what you are prepared to do and what you are not, and you will end up saying “no” without poisoning your personal relationship.

As any significant interaction with a client or adversary, good preparation is part of the job. By defining what you are prepared to do, you are in fact helping your relatives make key decisions. One of those decisions may be to seek counsel from someone other than yourself, as necessary. Here is a list of observations, both from personal experience and from observing other lawyers:

1.    Blood is thicker than water, but money can tear a family apart. This is the rock, paper, scissors dynamic of these situations. Never make money from family. At most, charge them at cost (2/3 your hourly rate), or whatever your law firm will permit. If you can, just do it for nothing. Your clients will likely feel any fee is too high. The psychology of this is that they will not feel entitled to involve you more than you are prepared to be involved, if they never paid you to do anything in the first place. (Even then, a minor infraction could bear major consequences if you lose, if you act for a relative who drives for a living.)

2.    Some families breed lawyers like lab animals with dominant genes. If your relative-client is a lawyer, you will soon find the rest of the family knows all about your client’s legal matters. Entre nous les avocats, the boundaries of lawyer-client confidentiality among relatives can become as porous as a sponge. The reason for this is that you can’t really close a file on a family member’s legal problem. Opportunities abound for confidences to blurt out in the most unexpected occasions.

3.    Work hardest during the initial consultation and assessment, to determine how long you are committing yourself. Perhaps it is not so relevant if you are helping on a business deal, reviewing a lease, or something with a clear beginning and end. In litigation matters, you really do not want to be involved beyond the scheduled date for the next big family get-together.

4.    Make it clear, in writing, that you cannot act in any portion of a matter that is highly contentious. In litigation, this may mean you are unbundling your retainer and referring the examinations for discovery, motions, and any trial or appeal to a lawyer in another law firm. Depending on the matter, it may also mean you cannot maintain your objectivity as a lawyer beyond the commencement of litigation, and you have to hand it over to someone else.

I once acted in a litigation matter where the lawyer had not disclosed he was acting for his spouse’s company. The amount in issue was hundreds of thousands of dollars. During the proceeding, I figured out the relationship. I consulted rule 4.01 of the Rules of Professional Conduct and determined I was obliged to share my discovery only with my client, and to use the information to my client’s advantage. In this case, I knew (a) he could not act at trial, (b) it could cost him or his spouse tens of thousands of dollars to brief another lawyer, and (c) he personally wanted to spare his spouse from public cross-examination, if at all possible. By the time the relationship came out into the open, my opponent had bargained a much lower settlement than what the case was worth. In the end, he had done his spouse no favour by acting for her company.

5.    If you’re a government or in-house lawyer, your relative may not appreciate that you are not insured to provide advice to parties apart from your employer. In this instance, “no” is the only word you can use. If the relative doesn’t get it, ask which part of that one-word sentence he or she does not understand.

6.    Don’t, under any circumstances, refer any aspect of the matter to your partners or associates. This will only spread the extent of your discomfort in acting for family to your relationship with professional colleagues. What if they end up being the clients from hell? Perhaps even more important, you do not want your work colleagues to hear about your personal life from these clients. Unless you’re the type of lawyer who gets his articling student to take his laundry to the cleaners, you have professional standing and credibility to maintain in the office.

Door No. 3

Don’t get me wrong. With the above advice comes hard work. Managing client expectations is always important. It becomes that much harder if you are related to the client. To conclude my metaphor of the separate doors and rooms to have your conversation with the family member, there should also be a third one: one leading to a graceful exit. Even if there is no actual buffet table or bar to replenish your refreshment, you have to come up with an exit plan for your conversation.

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