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10 Rules of the Road for Trial Lawyers – Protecting Clients and Preventing Legal Malpractice (Rule 7)

Oct 12th, 2015

Rule of the Road No. 7: A trial lawyer must maintain boundaries with clients.

It is important that lawyers keep clear boundaries between us, as professionals, and our clients. The risks of boundary violations include losing our professional objectivity, conflicts of interest and a host of other problems. Boundary issues can appear in the practice of law in a variety of ways:

Blurring the distinction between client and friend. A common boundary violation occurs when the lawyer gets to know the client very, very well, and gradually becomes less formal and more familiar with a client. Sometimes, the lawyer becomes good friends with the client.

Don’t blur the lines between lawyer and client. Always remember who is the lawyer and who is the client. As a general rule, you should not become such good friends with the client that it will then be difficult for you to give tough, clear-headed advice. You are not doing the client any favors by not being objective, and you potentially expose yourself to recriminations or worse if the matter ends badly. The odds increase that you will be a defendant in a legal malpractice suit if your friendship with the client clouds your judgment and affects your advice to the client.

If you become a close friend of a client, be very vigilant that the friendship not cloud your advice or professional obligations. If need be, withdraw from the representation and bring in more objective counsel.

Clients want a lawyer who is a little better and smarter than they are. Clients want their lawyer to be objective and give clear-headed advice. Give your best to the client, but don’t make the client your best friend. You and the client will both be better off.

Representing friends and family members. From time to time, all of us are sucked into the legal problems of our friends and family. Sometimes circumstances allow us little choice but to represent the friend or family member. Friends and family raise a myriad of potential conflicts of interest problems and boundary issues. We are at risk for losing our objectivity and becoming emotionally involved, thus impairing our professional judgment. Because we’re often not being paid, there is a risk that we will procrastinate or put the matter on the back burner, and the matter will be mishandled. There is a risk that we’ll find ourselves involved in a practice area in which we are not qualified to represent the person or find ourselves in a case that we simply don’t like.

Friends or family are high-risk clients. My experience is that friends and family will sue if a case goes badly. Whenever possible, we should avoid representing friends and family members. It is much better to refer the friend or family member to another good lawyer, and explain that we can’t undertake the representation because we’re too close to the person and can’t give them objective advice or explain that we don’t have the expertise to handle the matter. Indeed, if we have the means, it is often better – and cheaper – to pay another lawyer to handle the matter than to try to represent the friend or family member ourselves.

If you find yourself forced to represent a friend or family member, and can’t get out of it, don’t put the matter on the back burner; treat the friend or family member just as you would any other client. Moreover, be certain that you have a well-drafted engagement letter that clearly describes the scope of the representation, what the scope does not include, and, critically, what the payment terms are to be (assuming you are so fortunate as to be paid). See Rule of Road No. 5.

Financial relationships with a client. In our experience, lawyers investing or going into business with clients is fraught with peril for both the client and the lawyer. A lawyer entering a financial relationship with a client should precisely follow the requirements of ABA Model Rule 1.8(a) pertaining to business relationships with a client. You should insist that the client have independent counsel for purposes of the transaction (even if you have to pay for that counsel out of your own pocket). Moreover, you should insist that the client sign explicit waivers of any conflicts of interest and that the client’s independent counsel approve such waivers.

Sexual relationships with a client. A lawyer should never have a sexual relationship with a client unless the lawyer is in a romantic relationship with the client that predates the representation:

[18] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer’s ability to represent the client will be materially limited by the relationship. See Rule 1.7(a)(2).

ABA Model Rule 1.8, Comment [18].

The Colorado Supreme Court explained the unique dangers of a sexual relationship between a lawyer and a client:

[A] sexual relationship between lawyer and client during the course of the professional relationship presents significant dangers, including, at the least, the potential that the client will be injured by the lawyer’s conduct. A sexual relationship between lawyer and client may involve unfair exploitation of the lawyer’s fiduciary position, and/or significantly impair the lawyer’s ability to represent the client competently.

Because the lawyer stands in a fiduciary relationship with the client, an unsolicited sexual advance by the lawyer debases the essence of the lawyer-client relationship. Often the lawyer-client relationship is characterized by the dependence of the client on the lawyer’s professional judgment, and a sexual relationship may well result from the lawyer’s exploitation of the lawyer’s dominant position.

The inherently unequal attorney-client relationship allows the unethical lawyer just as easily to exploit a client sexually as financially. The trust and confidence reposed in a lawyer can provide an opportunity for the lawyer to manipulate a client emotionally for the lawyer’s sexual benefit. Moreover, the client may not feel free to rebuff unwanted sexual advances because of fear that such rejection will either reduce the lawyer’s ardor for the client’s cause or, worse yet, require finding a new lawyer, causing the client to lose the time and money that has already been invested in the present representation and possibly damaging the client’s legal position. A sexual relationship also presents the strong possibility of a conflict between the lawyer’s personal interests and the best interests of the client.

People v. Good, 893 P.2d 101, 103-105 (Colo. 1995) (internal citations and quotation marks omitted.)