Mates rates – acting for family and friends
By Michael Dolan.
Your cousin Vinny has just called you to ask that you act for him in a family law matter. You attended his wedding 10 years earlier and you are godfather to one of his children. Vinny is short of funds and cannot afford to retain a specialist family law solicitor. You like Vinny and want to help him, but you are concerned that it might be unethical for you to act for him. What should you do?
This is quite a common event for solicitors and is not confined to family law matters. Sometimes it is a relative making the request and sometimes it is a friend. Accepting a retainer from a relative or friend can be a risky business even if it does not involve a breach of any ethical obligations on your part.
Over the past 7 years on many occasions I have been asked for ethics advice by solicitors who have found themselves faced with this dilemma. Is it unethical for me to act in these circumstances? My answer has always been the same – No it’s not necessarily unethical, but why would you want to?
Objectivity and independence is essential
One of our fundamental ethical duties as solicitors is to avoid any compromise to our integrity and professional independence (see Australian Solicitors’ Conduct Rules, rule 4.1.4) We all know the old adage – a lawyer who acts for himself or herself has a fool for a client.
Acting for a relative or friend is only one step removed from acting for oneself. It’s hard to be independent and objective when acting for your best friend or a close family member, especially a child, parent, grandparent or sibling.
I accept that you can cushion this averse effect in many matters (especially in litigation) by briefing counsel, but it still leaves you vulnerable as YOU still have overarching obligations to the court which must be exercised by you in your own right independently of counsel (see Civil Procedure Act 2010.)
Be rigorous with client matter file management
Leaving the above aside, running a legal file for a relative or friend can be a nightmare unless you are rigorous about doing everything in relation to the file handling that you would do for a regular client, including making careful and accurate diary notes and sending letters of update and advice and seeking written instructions when appropriate.
It can be very hard to make careful diary notes at the Sunday lunch table when Vinny wants to discuss his family law case with you and the rest of the family or when he calls you at 3am to ask you a burning question on his mind that will not let him get to sleep.
Now let’s talk about Mates’ Rates!
And then we come to the question of your costs. As we all know, solicitors are highly regulated in this space and you must resist the temptation to not fully comply with the appropriate regulatory requirements of disclosure and the like.
Of course, Vinny will want you to act for him at significantly reduced rates. Just because Vinny is your cousin does not mean that he will not dispute your professional fees. And that may land you in solicitor and own client conflict of interest which is prohibited byAustralian Solicitors Conduct Rule 12.1.
Are you competent to act in the matter?
Finally, you have to ask yourself whether you are competent to handle Vinny’s family law case. You owe an ethical duty of competence to clients (Australian Solicitors’ Conduct Rules, rule 4.1.3) and if you do not handle very many family law cases, then you not only place yourself at risk of breaching this obligation with possible adverse disciplinary consequences, but you also lay yourself wide open to a potential professional negligence claim if it all goes wrong.
Solicitors should always think long and hard before acting for family members or friends. If in doubt, seek professional advice and assistance in helping make a final decision. And, if you have the time and inclination, watch the 1992 comedy movie My Cousin Vinny starring Joe Pesci referenced below.
- My Cousin Vinny (Movie starring Joe Pesci – 1992)https://www.imdb.com/title/tt0104952/mediaviewer/rm1260442624
- A reference to the ‘Australian Solicitors’ Conduct Rules’ is a reference to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 which can be foundhere.