Jul 2

Jul 2 That’s What Friends [May Not Be] For

Last week, I co-presented a session at the “Life Is a Highway: Handling Traffic Cases”* seminar at the State Bar of Wisconsin, with my friend Emily Bell. Our session was about dabbling—when you want to work on matters not in your normal areas of expertise, and sometimes without the preparation and training you need.

One of the topics we discussed is that “no good deed goes unpunished” thing when your friends know you’re a lawyer—they want you to handle their legal matters.

But can you?

You’ve been reading my blog long enough and alive in a world of stereotypes long enough to know the answer is, “it depends.” But anyway.

Most of us have handled the occasional low-stakes matter for a friend—sure, I will call the rental car company and argue that you don’t owe a $200 cleanup fee for having an unauthorized animal in the car when you didn’t. Okay, I’ll make sure that the vacation rental agreement you were 100% going to sign anyway doesn’t indenture you to a Nigerian Prince. In the world of traffic tickets, I maintain a policy that I will handle a ticket for family members, but only if it’s a basic call to the prosecutor to get to the points reduced. I won’t go to court to do the same thing (because it’s not a good use of my time) or to litigate (because there are people who do that for a living and I don’t).

Did you know that when you do things like that you need to run a conflict check even if you do it for free? (You do.) And you still need to do a good job because even though you see this as a favor, your family member or friend will rightly see this as their attorney working for them? (You do.)

An additional issue arises when a friend wants you to handle something complex and/or life-altering—you would probably turn down something high-stakes outside your wheelhouse (I hope), but even if you’re competent to handle it, will you be able to put aside your personal feelings for your friend? Can you objectively tell them that you think they’re making a huge mistake, or that “it’s not the money, it’s the principle” is almost never an appropriate north star for litigation? Is it a good idea to be advising someone, about something serious, who once held your hair while you got sick after too many lemon drops? And will your friendship be able to weather protracted proceedings, or an error you make, or (despite your best efforts) a bad outcome?

Many lawyers decide they don’t want to handle these sorts of matters—they don’t really want an up-close-and-personal look at their friends’ finances, marital infidelities, or other failings. And that’s fine—it’s never unethical to turn down a case because you don’t feel comfortable handling it and/or don’t want to expose yourself to the fallout if it goes sideways.

All that said, I actually routinely represent friends. Sure, I’ll send them elsewhere (within my firm or outside of it) if they need help with a criminal or family matter or really anything I don’t routinely do. But my main practice areas are legal ethics, and election/political law. Many of my friends are lawyers and/or elected officials. If I had a strict policy of not representing friends, I would either have no clients or no friends. And, these are incredibly niche areas. There are other good people doing this work, but not many. And it’s clear that my friends want me, specifically, to help. So, absent another issue or conflict precluding representation, I’ll represent them on these things.

A perhaps unanswered question here is whether representing a friend never, always, or sometimes constitutes a material limitation conflict under Rule 1.7(a)(2)—this sort of conflict arises when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

In other words, is your representation of your bestie hampered by your interest in keeping the friendship? This is a fact-intensive analysis, and likely depends on the nature of the relationship and the representation. These sorts of conflicts can be waived with written informed consent, if you reasonably believe you can provide competent and diligent representation despite the friendship.

The American Bar Association has promulgated opinions on what to do when your friend is opposing counsel or the judge, respectively. Both opinions suggest that you shouldn’t worry too much about casual acquaintances; you should disclose a regular friendship; close friendships and the like may require both disclosure and a waiver. Certain relationships (such as romantic involvement or cohabitation) probably require recusal of judges even if all clients are willing to consent.

But there isn’t a lot of guidance on what to do if your friend is your client, or whether you need a waiver when you do represent them. Perhaps the ABA opinions are instructive. Admittedly, I’ve never gotten a waiver for representing a friend, but also, I have never represented anyone I consider a close friend in a case that appeared to be, or turned out to be, more serious than a reprimand. I guess I’ll cross that bridge when I come to it.