It is common for lawyers to be asked to represent family members or friends in legal matters. However, there are ethical rules lawyers must follow regarding conflicts of interest that can complicate representing family members. 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.
Conflicts of Interest
Representing a family member may create a conflict of interest with another client if the matters are substantially related or if confidential information obtained in one representation can be used in the other. For example, a lawyer cannot represent a husband and wife in a divorce. Similarly, a lawyer who represented a company in negotiating a contract cannot later represent the other party in a dispute over that same contract.
Some conflicts of interest can be waived if the lawyer obtains written informed consent from each affected client. However, consent is not always effective to waive a conflict, especially if the lawyer’s responsibilities to one client will materially limit their responsibilities to another. The lawyer must make an independent determination that they can provide competent and diligent representation to each affected client.
Even if no clear conflict of interest exists, representing family members can be challenging because personal relationships can threaten a lawyer’s objectivity and independence of judgment. Lawyers have an ethical duty to exercise independent professional judgment on behalf of each client. Personal feelings can get in the way of objective decision-making and advising the client on the best course of action.
Beyond conflicts of interest, lawyers must also consider other factors in determining whether to represent a family member. These include:
- Financial considerations: Lawyers generally cannot make a profit from representing family members, as fees must be reasonable. They also cannot acquire an ownership interest in the subject matter of the representation.
- Impaired judgment: Representing a close family member can impair a lawyer’s independent professional judgment. They must be able to set aside personal feelings and advise the client objectively.
- Unequal power dynamics: Representing a family member with whom there is an unequal power dynamic, such as parent-child, can be unethical. The lawyer’s responsibility to the client may be compromised.
- Disagreements: Personal relationships can lead to greater disagreements or disputes, which can damage the attorney-client relationship. Lawyers must maintain control of the representation and be able to counsel the client effectively.
To conclude, while lawyers are often asked to represent family members and friends, they must ensure that doing so will not violate their ethical obligations. Conflicts of interest, waivers, and professional objectivity must all be considered before agreeing to represent a family member. Lawyers have a duty to put their clients’ interests first, so they must be able to do the same even for family members to ethically take on representation.