1. Introduction
1.1. Who should read this Guidance Statement?
This Guidance Statement is for solicitors and law practices.
1.2. What is the issue?
For solicitors – whose first duty is to the court and the administration of justice – acting for family and friends can be fraught with peril.
It is strongly recommended that practitioners consider whether it is appropriate for them to act for family or friends. In addition to issues of conflict which may arise from personal relationships and familial connections, professional independence can easily be compromised when emotional ties come in to play.
1.3. Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement, it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.
2. Background
It is not uncommon for solicitors to be asked by family and friends for assistance in legal matters, and understandable that practitioners will be eager to assist those close to them, especially in times of need. It is a situation likely to be confronted by all practitioners at some stage. Central to the value a solicitor brings to any engagement is professional independence, which allows the solicitor to consider the client’s position, dispassionately and without fear or favour, and provide truly independent, arm’s-length advice.
The difficulty for practitioners when acting for family or friends is that this independence can be compromised by personal feelings. Issues of conflict can also arise by virtue of the fact that a practitioner may have a personal interest in the outcome of matters involving family or friends. Both of these factors are red flags and should warn practitioners to refrain from acting for family or friends, as failing in these duties can result in disciplinary action and personal costs orders against the practitioner.1
3. Ethical principles
ASCR
Rules 4, 12 and 17 provide:
4. Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
…
4.1.4 avoid any compromise to their integrity and professional independence; and
…
12. Conflict concerning a solicitor’s own interests
12.1 A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.
17. Independence – avoidance of personal bias
17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
4. Family and friends
4.1. Family
What constitutes a family member will always depend on the particular circumstances of a given situation, and may include people outside of ‘traditional’ definitions of family. It follows that the term ‘family’ may be interpreted more broadly than the above definition and former spouses and those who have adopted informal familial roles are likely to be included. In addition, practitioners should be mindful of the importance and closeness of extended familial connections in certain cultural groups.
The term ‘immediate family’ is defined in the ASCR as meaning the spouse (which expression may include a de facto spouse or partner of the same sex), or a child, grandchild, sibling, parent or grandparent of a solicitor, although the context in which that definition is used in the ASCR is more narrow than the scope of this Guidance Statement.2
Acting for a first cousin has been held to be acceptable, albeit in an administrative ruling and not by a court.3
4.2. Friends
The particular nature and circumstances of the practitioner’s friendship with a potential client will govern whether the same kind of ethical issues will be relevant. When determining whether or not a person who may be considered a friend in general terms is too close to be a client, practitioners should consider the finer details of the relationship, for example:
- Is the person so close as to compromise the ability of the practitioner to apply independent forensic judgement to the case?
- Is the person so close that the practitioner has an emotional investment in the outcome of the matter?
- Does the person have intimate knowledge of the practitioner, which might inhibit the practitioner’s ability or commitment to provide frank and fearless advice?
- Would a dispute between the practitioner and the client affect the practitioner’s social or familial networks?
Not surprisingly, the courts and tribunals have recognised that romantic / intimate relationships can compromise the independence of solicitors.4
Similar considerations may also apply to acting for close colleagues and co-workers.
The concept of ‘friendship’ enters a grey area in the world of social media, such connections may be different from traditional friendships. It is likely that in many cases solicitors will be ‘friends’ with their clients on social media, and indeed source clients from their social media networks, without being friends in the traditional sense.
Whether or not this will trigger the concerns covered in this Guidance Statement will depend upon the level of connection and interaction with any given social media connection. The mere fact of being connected on social media will not automatically indicate a friendship of a kind which would lead the practitioner to be wary of acting. The true nature of the association will be the governing factor.
5. Ethical issues arising when acting for family or friends
The better practice for lawyers and law firms is to avoid acting for family and friends, due to the high risk of breaching a solicitor’s ethical duties. What follows is not an exhaustive list of those duties, but highlights the most likely areas of concern.
5.1. Independence
5.1.1. Personal loyalty
The close bonds between family and friends can pose a challenge to a solicitor’s independence. In addition to a general desire to see those close to us experience good outcomes, there is an understandable tendency to accept what they say without question, or even to disregard what they say, because of who they are rather than what they have said. The trust placed in friends and family can also inhibit a solicitor’s ability to forensically examine their case, or disincline them to undertake such examination in the first place.
5.1.2. Undue Influence
The presence of close emotional ties between solicitor and client can impede a practitioner’s ability to provide frank and fearless advice. Solicitors can be vulnerable to manipulation by influential family members or overbearing friends, and action instructions that they would ordinarily refuse to follow.
Conversely, solicitors can be vulnerable to accusations of wielding influence over family members.
5.1.3. Poor perception
Solicitors have a duty to avoid conduct which might diminish public confidence in the administration of justice,5 a duty often encapsulated in the adage that justice must not only be done, but be seen to be done. The way in which solicitors conduct their matters will inform the public as to the veracity of the legal system.
By acting for family or friends, it is possible a solicitor will give the impression that having friend or relative in the profession may give a person an advantage in a legal process. Where it is apparent that a solicitor is acting for a friend or family member, this may also limit the ability of the solicitor to persuade a court or opposing party, as the solicitor’s arguments may be seen to lack independence.
5.1.4. Advocacy
While solicitors of necessity advocate their client’s position, when there is a close familial or friendship connection between solicitor and client the potential exists for the solicitor to advocate for the person rather than the legal position. The closeness may lead the solicitor to identify themselves with their client’s case, and lead to a lack of objectivity which can undermine the justice system,6 or, as noted above, the practioner’s own effectiveness as an advocate.
5.2. Conflict
5.2.1. Own interest
Solicitors have a duty to avoid conflicts between their own interests and those of their client.7 Such a conflict is more likely when the client is a family member or friend.
Apart from the fact that solicitors may on occasion be financially or otherwise materially invested in the endeavours of their family and friends, the personal bonds in such relationships may lead to a level of interest in the outcome that transcends what would normally be expected in a solicitor-client relationship. This leads to a risk that, either consciously or unconsciously, the solicitor comes to make no or insufficient division between the client’s interests and their own.
5.2.2. Duty to court
The primary duty of a solicitor is to the court and the administration of justice.8 That means that it is possible for a solicitor to find themselves taking a course of action at odds with the desire, instructions or interests of the client. A difficult enough duty at the best of times, when applied to a client who is also a family member or friend, it can be a particular challenge.
5.3. Cessation of the relationship
The breakdown of friendships or familial relationships is not uncommon and can be a potent reason for reassessment of a practitioner’s work on a matter. Work done for an in-law who ceases to be so through divorce, or a friend who becomes estranged over time, can be subject to re-examination by those former clients. Any flaw in the work (real or imagined) will likely be amplified by the breakdown of the relationship and may lead to a complaint against the solicitor.
5.4. Communicating your decision not to act
If a solicitor is facing pressure from family or friends to act in circumstances where it would not be appropriate, the following strategies may assist in communicating your decision not to do so:
- If it is not your area of practice, explain that your family member or friend would receive much better assistance from an expert in the relevant area.
- Your relationship may cloud your professional judgment and your ability to bring an independent perspective and that could in turn impact your ability to do a good job.
- You do not want to jeopardise your personal relationship with the family member or friend, which may be impacted if you act for them.
- Let them know that you are still available to support them as a family member or friend, but not as their solicitor.
- If practicable and appropriate, offer to refer or introduce them to another solicitor who you feel has both the expertise and independence to manage this engagement or to a resource for finding another lawyer (such as the ‘Find a solicitor’ feature on the QLS website.
6. If you choose to act for family or friends
Although the better practice is to avoid acting for family or friends, practitioners may, after careful reflection, nonetheless decide to do so. In such circumstances, solicitors should take steps to avoid the ethical conflicts and challenges identified above including the following:
6.1. Practitioners should not exceed the limits of their practising certificate
No special exemptions are in place for family and friends, and solicitors can only deliver services to them within the bounds of their practising certificates. Solicitors employed by law firms will need to work through those firms – with the permission of the partners / principals – when acting for family or friends, regardless of whether or not fees are charged for the work.
Solicitors employed in-house or as government lawyers will not be able to provide legal services to family or friends; the limitations on their practising certificates prevent them acting for persons other than their employing organisations.9
6.2. Practitioners should not undertake work outside their areas of competence and experience
Lay people are unlikely to appreciate the distinction between practice areas, and to assume that a solicitor can assist in any legal matter, or at least be ‘better than nothing’. This is not the case, and the desire to assist arising from the loyalty felt to a family member or friend can lead to trouble. Solicitors should avoid the temptation to undertake work beyond their skills / experience level, even when it would help a family member or friend, or save them money. It is likely that such good intentions will lead to a poor outcome for the client and possibly allegations of negligence being made against the solicitor.
6.3. Practitioners should ensure that all required costs disclosures are made
There is no exemption for family or friends in terms of costs disclosure or the requirements in relation to costs agreements. In addition, engagements with family or friends are more susceptible to misunderstandings given that either party might make incorrect assumptions based on the underlying relationship.
If a solicitor does take on a family member or friend as a client, a specific and comprehensive retainer and meticulous costs disclosure will reduce the chances of misunderstandings and conflict during the engagement.
6.4. Practitioners should be wary of ‘mates’ rates’ agreements
It is almost inevitable that family and friends will assume or even demand free or discounted work, or that the solicitor themselves will be motivated to offer it due to the underlying relationship, but this is to be avoided. There should be no discernible difference between the way a solicitor engages with a relative or friend and the way they engage with a client who was unknown to them prior to the engagement. If this is being encountered as an issue, it is a sign that you should approach acting with caution.
In addition, solicitors offering discounted or free work to family or friends, rather than for commercial reasons or in the case of genuine pro bono work, run the risk of committing to rates based on the personal relationship rather than what can be reasonably and commercially achieved. This in turn leaves them open to the accusation, should the client be unhappy with the outcome or come to regret it with the passage of time, that the solicitor did not make their best efforts given the lack of profit involved.
6.5. Practitioners should acknowledge the relationship in the retainer
It is recommended that any retainer with a family member or a friend should overtly acknowledge the relationship, and note that the solicitor has discussed the potential issues with the client, especially what will happen should circumstances lead the solicitor to be in a position of conflict. If the solicitor has suggested that the client ought to see another lawyer who is not a family member or friend (which is highly recommended) that should be noted in the retainer. The client could also be asked to acknowledge in writing that they were offered that option and rejected it.
6.6. Practitioners should be aware of any additional liabilities in their insurance policy
For those solicitors who are insured with Lexon,10 the practitioner should be aware that the Lexon policy may require that the practitioner re-pay to Lexon any amounts paid to compensate that relative (as defined) in respect of any claim brought by the relative against the practitioner or their firm (i.e. you may be effectively uninsured). Practitioners should therefore check their own insurance policy to ascertain their position when acting for a family member.
7. More Information
Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).
For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor .
1 Brown v Guss (No 2) [2015] VSC 57.
2 Australian Solicitors Conduct Rules 2012 (Qld) p 27 (definition of ‘immediate family’) (‘ASCR’). Note that this definition has a narrow application in the ASCR, including in r 12.4.2, which is an express exception permitting a solicitor to prepare a will for an ‘immediate family’ member, under which they may be a substantial beneficiary. This may be acceptable in many cases, although the issues raised in this Guidance Statement could still be relevant in some situations to which r 12.4.2 applies. Note also the case of a disciplinary matter involving the preparation by a solicitor of a will for his aunt (ie. not an ‘immediate family’ member) where the solicitor was a beneficiary: Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10.
3 Law Institute of Victoria, Ethics Committee Rulings (R4660, 27 May 2010).
4 Legal Services Commissioner v La Spina [2012] QCAT 183; R v Szabo [2000] QCA 194.
5 ASCR (n 2) r 5.
6 See generally Sir Gerard Brennan, ‘Pillars of Professional Practice: Functions & Standards’ (1987) 61 Australian Law Journal 112.
7 ASCR (n 2) r 12.
8 Ibid r 3.
9 Legal Services Commissioner v Kellahan [2012] QCAT 263; See Queensland Law Society, ‘Admitted but not holding a current practising certificate – what can I sign and call myself?’, QLS Ethics and Practice Centre (online, September 2015).
10 Clause 5.6 Lexon Insurance Master Policy No. QLS 2021-22.