Introduction
In this day and age, it seems like lawyers are
everywhere. As a result, it is almost
impossible that you are reading this as someone who does not personally know an
attorney - a family member, friend, or both!
This means that if you encounter a legal situation in your own life,
your first temptation might be to talk to the attorney you know before you do
anything else.
I’m not going to sit here and tell you that this first
temptation is wrong. Quite the contrary,
friends and family members are great resources for many things in life, and if
you know an attorney in such a context where you also know that this is someone
you can trust, you’d be foolish not to speak to them first. But what happens after that
conversation? What happens if the
attorney they refer you to turns out to be no good? What happens if you ask them to be your attorney
directly? Do you really want to risk
your relationship with this person?
In this post, I discuss some of the pitfalls of having someone you know represent you or refer you to another attorney, and some advice on how to protect your relationship as a friend or family member while also pursuing your legal interests.
Don't Expect the World from your Referral
I’m going to cover referrals to other attorneys first. One of the reasons I say that it is a good idea to speak with an attorney
you know when you have a legal issue is that an attorney who is already your
friend is more likely to say “I don’t know anything about that area of law”
than an attorney who sees you as a potential paying client. An attorney who sees you as a potential
paying client might think he could gain sufficient competence in that area of
law during representation to reasonably say “yes, I can do that,” and while
that might work out, do you want to
take that chance? So, with a friend or
family member, you are more likely to get an admission of a lack of knowledge. Your follow-up question, however, is where
the danger comes. You’ll likely respond with,
“well, do you know a good attorney
who does?”
The fact is, contrary to what is often portrayed on TV,
attorneys are often very insulated in their areas of practice. An attorney is likely to have a good idea of
who the good attorneys are within their
field, but if they are within their field, then that attorney would not
have answered that she does not know anything about that area of law. So, if we
are asked to refer you to someone in a field of law we know nothing about, we
are not likely to have much more information than you do - unless for some
reason we had to hire an attorney in that field ourselves.
Attorneys do get
to hear whispers of reputation, and while there are plenty of reliable sources
to find attorneys that are available to the general public, the average person
in the public does not know what those sources are, but an attorney does. As a result, we may still give you more
reliable referrals than you could find yourself. Nonetheless, we typically will not know the
attorney personally, or have ever seen them in court. I know I, for one, can count on one hand (I
believe the exact number is two) the number of attorneys I personally know and
can recommend from personal experience that practice in fields in which I do
not practice. One is solely because he
rents an office from our firm so I encounter him on a daily basis, and the
other is solely because he happened to be handling the real estate side of a
very complex landlord/tenant case I handled.
As a result, perhaps the best way to preserve your relationship with an attorney friend or family member when they refer you to an attorney is to keep your expectations reasonable about that referral. If that attorney turns out to be lousy, tell your friend or family member so that they do not refer that attorney again, but otherwise understand that they just do not know much more about that attorney than you do.
Retaining the Attorney you Know
I shock people when I say that I do not think it is a bad
idea, if you are in an area of law that the attorney practices, to actually
retain a friend or family member as an attorney. After all, money is, to be honest, a good
motivator but not the greatest of motivators.
Few things, however, can be a stronger motivator for a person than
protecting those you care about. There
are few ways you can be surer that your attorney will go to the mat for you
than hiring a friend or family member.
Moreover, a friend or family member will start out knowing more about
your situation than most anyone else. While
every case is unique, and I certainly can’t say this would happen for you, I
once had a case where the other attorney, who did not know I was representing a
family member (since it never came up), made the mistake of trying to get me to
have sympathy for her client, when I knew, from personal experience, the mistreatment
her client had subjected my family member to.
I responded very directly with a great deal of specificity in which I
made clear where my sympathies lie, and within another week we had settled the
case very favorably.
Of course, there are numerous ways that the attorney-client relationship can end up harming your friend or family relationship - and that’s why so many think it’s a bad idea altogether. The most common causes of this breakdown is fighting over payment of fees, dissatisfaction with the results of the case, or inability to separate the attorney relationship from the personal relationship. I want to address those points now, as it is entirely possible to avoid those problems.
Never Make an Hourly Rate Fee Arrangement
The fact of the matter is 99.9% of fights over fees are a
result of an hourly fee arrangement (that percentage is completely made up for
effect, by the way, but you get the point).
You may also recall from my post a couple months back that hourly fees
are the most common fee arrangement. So,
the fact is, if you are going to retain a friend or family member, the odds are
you will be doing so in a situation where, typically speaking, they charge an
hourly fee.
I cannot stress strongly enough that you should not, under
any circumstance, hire your friend or family member on an hourly basis. Remember my above statement about how hard
your attorney will fight for you in this situation? Well, now you’ll be paying for those extra
hours, and trying to guilt your friend over their fees. The problems easily spiral from there. You should only allow a friend or family member to represent you on a pro bono basis, a flat fee basis, or a
contingent fee basis. If the attorney
does not have the flexibility with his or her firm (or the willingness for
whatever reason - you don’t know, maybe their personal budget is tight that
month) to not charge an hourly fee, then be understanding and accept that, and
ask the attorney for a referral to someone else.
Few things can harm a relationship between friends and family members more than disputes over money. To date, I have represented a friend or family member three times, once on a flat fee basis and twice on a pro bono basis, and the result has been that I have yet to have a single fee-related fight with these friends and family members. Moreover, in the pro bono situations, they already recognize that I can only do so much for them since I am not getting paid, and as a result they are less demanding of my time - meaning if I was charging an hourly rate, they’d actually be keeping their bill down (of course, this is actually the opposite of what typically happens in a pro bono case where you are not representing a friend or family member, but that’s neither here nor there). If you avoid hourly rate fees, you will likely avoid this fight, and it’s simply better to not hire your friend or family member at all than to do so on an hourly rate basis.
Remember that Sometimes Attorneys Lose
Legal cases are uncertain.
The law is frequently unclear, and there is always two sides to every
story. Perhaps the biggest pitfall an
attorney who has a friend or family member as a client faces is that we will
believe you completely, as opposed to the more skeptical eye we would take to a
client who we do not know personally. As
a result, we may tell you at first that your case is very strong, but then as
the case develops, it becomes clear that it actually is not.
As with referrals, expectations are the way to prevent this problem. Understand that if you lose your case, it’s probably not your attorney’s fault. Moreover, if your attorney set your expectations too high, it’s probably because your attorney believed you completely, and you did not allow your attorney to see the other side of the situation. If you understand these facts, and set your expectations accordingly, you can preserve your personal relationship with the attorney, even if the professional relationship ends poorly.
Leave Your Case at Your Attorney's Office
I’ll be blunt - if I’m coming over to your house for a poker
game, I want to drink a few beers, play some poker, relax, and have some fun
hanging out with my friends. If we’re
gathering for Thanksgiving dinner, I want to spend the evening catching up with
family, eating good food, and telling jokes about the family members who made
the mistake of not showing up (just kidding about that one… mostly). If I talk about work, it will be in the
context of “you won’t believe what happened today.” What I do not
want to do is actually do work.
You need to understand that if you have a personal
relationship with your attorney, then you have a professional relationship on
weekdays, and a personal relationship on weeknights, weekends and
holidays. One should not intrude on the
other. You wouldn’t show up at my office
to spend three hours telling me about the raging party you went to this past
weekend, would you (assuming that something didn’t happen at that party that
impacts your legal case in which I am representing you)? Then why would you show up at my house for a
guys’ night and spend three hours talking about your case?
I understand that your legal issues are very important to you and an important part of your life - but if I’m your attorney, to me, they are work. They are part of my job. The first issue above (fees) can result in anger in both directions. The second (fighting over results) almost always comes up where the personal relationship is harmed due to the client’s unhappiness. This issue almost always comes up where the personal relationship is harmed due to the attorney’s unhappiness. Just like you don’t want to bring your work home with you, we don’t either. If you want to help preserve your personal relationship, leave the professional relationship at work.
Conclusion
In short, if you have a legal issue and you know an attorney personally, good for you. By all means, talk to her about it. Just recognize that you are about to enter a danger zone for your personal relationship. You can take simple steps to preserve your relationship, however. If the attorney refers you elsewhere, be reasonable about your expectations. Understand that while your attorney friend or family member probably does know more about that attorney than you do, it’s probably not by much. If you actually retain your friend or family member as an attorney do not do so on an hourly basis, keep your expectations about the case reasonable and do not hold it against your attorney if it turns out poorly, and don’t let your professional relationship intrude on your personal relationship’s time.
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