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Friends and Family We have just concluded the holiday season, when people traditionally spend time with their family and with close friends, basking in the warmth of good feelings. While this idyllic scenario does not in fact play out for everyone, it still represents most people’s dream image of the holidays. Friends and family also find their way into several aspects of professional responsibility, in various rules and matters that have led to discipline. Not all have shown friends and families at their best, unfortunately. Some of the most intensely contested complaints arise out of family law or estate or conservatorship matters involving children and elderly family members. Lawyers who practice in these areas are no doubt aware of the emotional nature of disputes that may arise between spouses (or exspouses), between siblings, or between parent and child over custody or distribution of assets. Family businesses are also a frequent backdrop to complaints against lawyers. The bitterness between family members often will be transferred onto the unfortunate lawyers, who are seen as conspiring with their individual clients to “rob” other family members of what they believe is rightfully theirs. Even more intense are the feelings when the
lawyer is a participant in the underlying proceeding — as a sibling,
child or parent — and is representing herself as well.1
Legal training is suddenly seen as an unfair advantage, especially
by relatives paying for their own lawyers in the matter. Thus lawyers, especially those who practice
in the area of family law, know their practice is at high risk of complaints,
sometimes despite their best efforts.
Complaints from an opposing party may be difficult to predict
or avoid. There are many quality family law practitioners,
however, who never generate complaints from clients or from the other
party. Diligence, good communication
skills, and civility towards all participants in the process (even when
your client desires you not to be civil) usually are the keys to professionalism.
Where There’s a Will Within the Minnesota Rules of Professional
Conduct (MRPC), there are two rules that specifically apply to friends
and families, and each rule treats them somewhat differently.
Rule 1.8(c) restricts lawyers in most instances from drafting
instruments that leave substantial gifts to the lawyer or to the lawyer’s
family. Rule 7.3 restricts most
in-person and telephone solicitation of legal business except from close
personal friends and family, and individuals with whom the lawyer has
a prior professional relationship.2 Rule 1.8(c) states that a lawyer “shall not
prepare an instrument giving the lawyer or a person related to the lawyer
as parent, child, sibling, or spouse any substantial gift from a client,
including a testamentary gift, except where the client is related to
the donee.” The American Bar Association (ABA) Model Rules
of Professional Conduct extend the exception contained in Rule 1.8(c)
further than does Minnesota. The
Model Rule also allows lawyers to prepare instruments leaving gifts
to the lawyer or her family for clients “with whom the lawyer or the
client maintains a close, familial relationship.”
When the MRPC were comprehensively amended in October 2005, even
with the goal to bring Minnesota’s version of the rules closer to the
Model Rules, this language was not adopted.
Complaints have arisen in the past two years
from an attorney’s drafting of a will for a client and from the handling
of a real estate transfer. Had
the “close, familial” language been part of Minnesota’s rule, it could
have changed the result in both cases.
In the one matter, the attorney asserted that the close, family-like
relationship he had maintained with his client, for whom he had drafted
a will, was such that a bequest of $10,000 to the lawyer should not
be found improper. A Lawyers Board panel disagreed and issued an
admonition to the lawyer,3 since, as noted,
Minnesota does not recognize such an exception to Rule 1.8(c). Nevertheless, the fact that the lawyer in fact
was a close friend of the testator likely was a significant factor in
keeping the panel from finding that public discipline was warranted. The second matter also resulted in a panel
issuing an admonition to the attorney.
In that instance the dynamic of the modern extended and blended
family also was at issue. The lawyer drafted a deed for his wife’s elderly
stepfather, transferring property to the lawyer’s daughter. His wife’s mother had died previously. The lawyer argued that the client still was
a family member. While the step-grandfather/step-granddaughter
relationship was arguably “family-like,” in fact the grantor and grantee
were not related. Other family
members, who may have been beneficiaries of the stepfather’s will, complained
that valuable property no longer was a probate asset.
The admonition also was premised on the conflicted advice provided by the lawyer, who
did not advise the former stepfather to seek independent counsel, even
though the transaction benefited the lawyer’s immediate family.4 Up Close and Personal Why the differing treatment?
Solicitation of legal business does not involve the transferal
of possibly large amounts of money or property to the lawyer or her
family, as does the drafting of a will or deed.
The potential for an overly elastic interpretation of who is
such a close, personal friend (or family-like person) is therefore less
of a concern in the solicitation situation.
Individuals who have such a relationship with the lawyer may
well turn to the attorney naturally to handle their legal affairs.
Thus, the need for time to reflect or seek independent advice
does not seem as essential in this situation.
Complaints concerning in-person or telephone solicitation of
legal business are uncommon, so it may take some time to determine whether
the addition of the “close personal” relationship to the rule’s exceptions
will have much impact. Other Rules Finally, attorneys who failed to comply with
the requirements for continuing legal education (CLE) and were then
placed on restricted status once had particular reason to attend to
their family relationships. Prior to 2000, an attorney on restricted status
was authorized to represent himself and certain close relatives. Under Rule 12, Rules of the Board of Continuing
Legal Education, a restricted attorney is now prohibited from representing
anyone except himself or herself. Many
lawyers remain unaware of this change, thinking that they can still
represent their spouse or child in a legal matter despite their noncompliance
with CLE. Such representation
would constitute the unauthorized practice of law and violate the MRPC.
The support of caring family and friends can
be a blessing. Handling legal matters for family and friends,
however, can create professional responsibility issues that must be
recognized and dealt with appropriately.
2 Another rule, 1.8(i),
used to deal with family relationships as well.
The rule limited representation of clients against clients represented
by certain family members. This
rule was eliminated as of October 2005, and
is now addressed in Comment [11] to Rule 1.7.
This change was discussed more fully in this column in the August
2006 issue of Bench & Bar. 3 More serious violations of Rule 1.8(c)
may warrant public discipline. See, In re Prueter, 359
N.W.2d 613 (Minn. 1984). 4 Conflicts of interest covered by Rule
1.7(a)(2), MRPC, for “personal interests of the lawyer” may include
matters involving friends or family members. 5 Comment [4] to Rule 7.3, MRPC, indicates
that the term “prior professional relationship” means a former client. 6 In-person and telephone solicitation
of other lawyers is also permitted since the October 2005 amendments. |
