I was approached recently by two friends of mine who are co-owners of a small business. They had been served with process in a breach of contract action in district court. My friends wanted to consult with me about the suit and discuss defense strategies, counterclaims, and the like. Ordinarily, this would be a case right in my wheel house.
For starters, I knew immediately that, even if I wanted to, I was ethically required to decline representation, as neither me nor my associate were available on the date assigned for trial. (Yes, I remember you, Attorney Grievance v. Ficker.)
Toward the end of our consultation, one of my friends asked me whether, even if I was available to take the case, would I feel comfortable working with them as clients who are also friends?
Like many of us, I have dispensed legal advice on many occasions to friends and family. However, my only prior history substantively representing friends and family was representing my mother for her dastardly violation of Transportation Article 21-707 (yes, failing to stop at a stop sign is the only blemish on her 40-plus-year driving record). And substantive representation is different.
When we represent our clients, sometimes we have to have very difficult conversations with them. Sometimes have to talk tough. And sometimes we have to deliver very difficult or uncomfortable news. We become privy to financial and personal affairs at a level of detail that could be beyond what our clients’ friends and family are even made aware of. We have to manage client expectations.
On the flip side, our clients also have to consider whether they would be comfortable having a friend serve as their lawyer. A friend of mine who is a Realtor put it best when my wife and I did not use her in a real estate transaction: “Sometimes you just need to yell at your Realtor.” The same holds true for our clients. Despite our best efforts to be good listeners to our clients’ needs, goals, and expectations, I am quite sure that each of us has been on the receiving end of some unpleasant yelling and screaming.
For me, the answer as to whether I could or would represent a client or family member is a giant “it depends.” It depends on the issues involved in the litigation (and, of course, whether I am professionally competent to handle those issues). It depends on the stakes of the litigation. It depends on the totality of the circumstances and whether, if things broke badly in the litigation, I thought the friendship could survive. To me, a good referral to a trusted colleague is worth keeping a friendship (or maintaining family harmony).
In the end, whether to represent a friend or loved one is a personal decision for each lawyer. We all weigh different factors in making this determination.
How do you approach similar situations?