Caution for lawyers giving casual advice: friends, family and fiduciary duties
What ethical obligations arise when you're giving casual advice or just helping a friend or family member?
People aren't very good at saying "no" when someone asks for help. We're so bad at it, in fact, that "saying no" is the subject of countless articles, books and podcasts.
We want to be helpful. It's a good inclination, but it can lead us into bigger obligations than we intended.
When I became a lawyer, I was excited to be able to share my new wealth of knowledge with my friends and family, even passing acquaintances. I wanted to be able to help people out and to answer their questions easily. I also hated admitting I didn't know the answer to something. It played on my worst professional fear - imposter syndrome - the fear that I still somehow wasn't quite a "real" lawyer.
But the reality is, most lawyers are not generalists. I don't know how to write a will or incorporate a company. When a friend asks me to help them with something like this, I used to find it awkward to say no. It's even worse if a friend has a pressing legal issue that needs immediate attention or when the legal issue is close to your heart or your politics. You feel compelled to help. But before you or I jump in, we should to consider what obligations might arise from trying to assist.
"Just a quick question for you..."
The lawyer-client relationship does not require formality to be established (Commentary  to Rule 1.1-1 of the Nova Scotia Barrister's Society Code of Professional Conduct (the "Code")).
*The following is not intended as legal advice, nor is it an exhaustive list of the ethical obligations owed by a lawyer to a client.
You need to ask yourself:
1. Am I competent to handle this matter?
The rules in the Code provide that “A lawyer should not undertake a matter without honestly feeling competent to handle it, or being able to become competent without undue delay, risk or expense to the client” (Rule 3.1-2, Commentary ).
It can be challenging to tell a family member or a friend that you can’t help them. You might think, as we all have, 'I can get up to speed on that area of law.'
The rules require that if you are considering taking on a matter that you are not competent to assist with, you either (a) decline to act; (b) obtain the client’s instructions to retain, consult or collaborate with a lawyer who is competent for that task; or (c) obtain the client’s consent to become competent without undue delay, risk or expense to the client.
This leads us to our next question.
2. Can I provide an appropriate quality of service to this client or am I stretched thin as it is? Or will their matter fall to the side of my desk while I focus on my “real” clients?
It is tempting, especially with friends or family, to overpromise what you might be able to do for them. You need to remember that agreeing to assist may mean that you owe them the same quality of service obligations as you do any of your other clients.
"A lawyer has a duty to provide a quality of service at least equal to that which lawyers generally expect of a competent lawyer in a like situation" (Rule 3.2-1, Commentary ).
3. Will I be able to provide the same level of confidentiality as I normally would or will my relationship with their friends, family or partner compromise that?
A lawyer "owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person." (See Rule 3.3-1, Commentary ). Lawyers should not disclose having been "consulted by a person about a particular matter, whether or not the lawyer-client relationship has been established between them. (Rule 3.3-1, Commentary ).
Will you be able to keep that this person sought help from you confidential? Or will you be tempted or, perhaps, pressured to share that information?
4. Is there a possible conflict of interest here, given my relationship with this person?
The Commentary to the Conflict of Interest rule in the Code flags a close personal relationship with a client as a circumstance that may give rise to a conflict of interest. Of note, the Code provides that "[t]he relationship may obscure whether certain information was acquired in the course of the lawyer and client relationship and may jeopardize the client’s right to have all information concerning his or her affairs held in strict confidence" (Rule 3.4-1, Commentary ).
This concern over the fact that information shared may not be considered privileged is one that the lawyer should turn their mind to when representing someone close to them.
5. What happens if things don’t work out? Am I confident that I could withdraw if there is a serious loss of confidence?
Lawyers are often risk adverse when it comes to their clients, advising them to always set things down in writing and to make sure that arrangements are clear. Lawyers often also fall into the trap of not following their own good advice.
When providing summary advice to someone we are close with, we might not feel the need to set things down in writing. But, as any lawyer knows, a matter might be emotionally charged or go sideways suddenly.
Remember that "[h]aving undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship. It is inappropriate for a lawyer to withdraw on capricious or arbitrary grounds [emphasis added]" (Rule 3.7-1, Commentary 1).
Lastly, (but not least-ly?) we have an obligation to make legal services accessible (Rule 4.1). The above sets out some obligations you may wish to consider before saying "yes" to assisting and hopefully helps to show the value in taking the time to ensure that both you and your friend or family member understand what you can and cannot do for them.
Stay tuned for a short guide to Limited Scope Retainers!