Why You Should Avoid Acting for Family and Friends

  • October 24, 2018
  • Ian Hu, counsel, claims prevention & practicePRO (LawPRO)

Leigh was in a bit of a pickle. She was getting some work done on her roof and the roofers did a bad job. It was a big house, an expensive roof, and the roofers refused to make good.

She turned to her brother Bob to start a small claims court action. Bob was a solicitor-side lawyer who had never litigated a court case. But his sister was in a bind and "only" a few tens of thousands of dollars were at stake. Did not brotherly duty, or sibling rivalry, dictate that he should take it on?

Bob called around to some of his litigator buddies and figured out what steps he had to take. Then, he put together the case and got what evidence he could from his sister. Dealing with his sister ended up taking up more time than he wished. Wrestling information from her was, as always, difficult. Their personalities had always clashed and it was no better now that they were adults. As the case progressed Bob realized it wasn't as open and shut as Leigh had let on. He urged her to settle but she remained stubborn. On the day of trial she was not a good witness and they even bickered in front of the judge.

The verdict awarded Leigh was much less than the settlement offer, and Leigh was upset. She was so angry she said she'd sue Bob for the rest of the money. Bob knew he had done good work as a lawyer but worried that he did not document any of his discussions with Leigh, thinking it unnecessary. So much for good intentions. (Names and minor details changed to anonymize)

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Lawyers, like anyone, want to help family and friends, but doing so is risky. Because such relationships are informal by nature, acting for them may default to long established informal behaviours. This can mean cutting corners, such as failing to obtain consents or instructions, and failing to document communication. The usual practices of explaining possible outcomes, risks, and cost consequences may be skipped along the way. Standard procedures as routine as signing retainers and conducting conflict checks can also be skipped in the name of the relationship.  

Family and friends can unexpectedly become the most difficult clients. Just as they might expect you to return friendly texts immediately, so too those expectations will leak into the lawyer-client relationship. They can expect you to be at their beck and call 24 hours a day. Maintaining objectivity may also be difficult, as your judgment can be clouded by personal feelings. Neither you nor them may be willing to accept frank advice or take instruction that you disagree with. Fees may also be heavily disputed, with you ending up doing unanticipated pro bono work. And finally, if the matter does not end well, the personal relationship can suffer a breakdown and a malpractice claim. 

Another danger is the tendency to dabble in a practice area outside of your experience. Avoid acting on such matters, as they account for a big chunk of malpractice claims under “failure to understand the law.” Without specific knowledge of applicable law, limitation periods and deadlines can be missed, along with omitting critical steps or provisions in contracts. Don’t dabble! Ontario lawyers, remember that the LAWPRO policy has a related entity or business enterprise exclusion. Your coverage may be limited when you, your spouse, or others related to your firm have an interest in the claimant. 

When responding to legal requests from family and friends, you may explain to them – in a nice way – that someone else outside your firm may be better suited to handle the matter. Such a lawyer can offer independent and objective advice, which is ultimately going to be the best for them. While you may want the best for them too, your personal relationship can colour your objectivity, which ends up paradoxically not the best for them. And there’s bound to be bad news at some point, which may be best delivered by someone else. 


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