Favors, Friends, and Family
LACBA Update, April 2002
By Diane L. Karpman, immediate past chair, Los Angeles County Bar Association Professional Responsibility & Ethics Committee. Karpman of Karpman & Associates in Los Angeles represents attorneys in disciplinary matters and is an expert consultant and witness on legal ethics issues. The opinions expressed are her own.
Most members of the profession realize that the duty of competency, as inferentially articulated in Rule 3-110, is static and mandates the same performance whether it’s pro bono or for vast riches.
However, often lawyers will assert, "But I was just doing a favor for a friend or family member." The representation of friends and family members is fraught with peril due to the differing expectations of the parties. "Surely my sister or the next door neighbor cannot constitute a true client." Or, "I cannot owe that person any duties or obligations. His name isn’t on the retainer." Or, with an astonished look of wonderment, "He cannot be my client. We don’t have a contract." Or, "I have no duties. It was merely a prospective client, and I verbally declined the representation."
Au contraire — Some authorities maintain that the attorney-client relationship may be created in a casual manner; i.e., it merely requires someone seeking legal advice with an expectation of confidentiality. In essence, that means that curbside advice or cocktail chatter conceivably could create the relationship.
A more reasoned position maintains that the totality of circumstances, including the parties’ conduct, should be considered. This would include the transmission of confidential information, length of a meeting, location, and subsequent conduct of the client and the lawyer.
The existence of the relationship also can depend on the type of claim being asserted by the client, i.e., malpractice, a motion to disqualify, or a State Bar complaint.
One of the most important facts involved in finding an attorney-client relationship is the expectation of the client, based on how the situation appears to a reasonable person in the client’s position. Responsible Citizens v. Sup. Ct. (1993) 16 Cal. App. 4th 1717, 1733.
For this reason, it would bode well for a lawyer’s future (as a carefree unburdened member of the profession) to send a disengagement letter if any confusion exists. The "not a client" letter would militate against a reasonable person’s expectation that the lawyer was actually engaged. This is particularly true when the lawyer has interviewed a prospective client in the office, since an initial office consultation can engender an attorney-client relationship. Miller v. Metzinger (1979) 91 Cal. App. 3d 31. It’s of paramount importance to clarify the identity of the client in "group" representation, to eliminate any potential claims by members of the Board, Union, or assorted random shareholders.
The attorney-client relationship is ordinarily created by a written contract or fee agreement, but it may be implied, absent a formal fee agreement, based on the conduct of the parties. Payment of fees isn’t the sole factor in determining the existence of the attorney-client relationship. Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal. App. 3d 264, 285. This is consistent with other ethics rules, since the Rules recognize that in certain circumstances, fees may be tendered by a non-client third party payer (Rule 3-310 (F)).
When you (an outstanding toxic tort specialist) arrive home after a long day, and little Johnny (the neighbor’s son) implores you to represent him in his bike fender bender because he knows that you are the best lawyer in the world — just say "No."
Johnny believes that you will give his case special care because you have known him since he was born whereas you believe that he will understand that you need to deal with pollution in the Santa Monica Bay and that...he will understand.
Too many State Bar complaints and other problems are engendered by these irreconcilable expectations. Avoid representation of friends and family members —Life is too short.