There is a well-worn joke about a lawyer who runs into an old acquaintance on the street. “I’m so glad to see you!” the friend exclaims. “I’m in terrible trouble—can I ask you a couple of questions?” “Of course,” replies the lawyer, “what’s your second question?”
Underlying this old chestnut is a kernel of truth, because most lawyers recognize the dangers of dispensing informal legal advice. For newer lawyers, it may seem only polite to give a friend or family member a few minutes of advice, or to chat casually with a current client about an unrelated issue, but there is peril in such informal exchanges, and lawyers should be mindful of the risks.
Conflicts and Disqualification
The most cited risk is that a lawyer in a firm will unwittingly create a conflict. The classic example is the young associate whose friend asks for guidance about a dispute with a third party, such as a landlord, employer, or service provider. The associate, eager to be helpful, does not run a conflict check but points the friend to the relevant statute and explains its meaning. As luck would have it, the friend turns out to be adverse to a current client of the firm. This scenario is sure to end poorly for the associate, and it may also injure an existing client relationship at the firm or scuttle a contemplated representation.
Now suppose that the advice the associate provides to her friend concerns an employment issue, and, unbeknownst to the associate, the friend’s new employer is a client of the firm. Thereafter, the friend retains counsel and sues the employer. When the employer asks its own counsel (the associate’s firm) to mount a defense, the plaintiff’s lawyer successfully moves to disqualify the firm from representing its long-time client because the associate (and thus the firm) previously advised the plaintiff about the matter.
The possibility of a conflict is magnified by situations involving entities, associations, and agency relationships. An attorney might chat with a friend whose tech startup is at odds with the management company that runs the startup’s rented office space. Even knowing the name of the management company, the attorney could easily miss that the building is owned by a firm client. See, e.g., Bays v. Theran, 639 N.E.2d 720 (Mass. 1994) (firm disqualified from representing condominium association because firm lawyer formed implied attorney-client relationship with one of the unit owners).
Friends asking for free, off-the-cuff legal advice are likely to get what they have paid for. Well-intentioned lawyers may do their best to qualify informal advice with statements like “you should ask a specialist, but . . .” or “without the benefit of research, I would think that . . .”; however, even sophisticated laypeople are unlikely to fully appreciate such caveats. A lawyer advising a friend or family member also may lack the objectivity necessary to give good counsel. Further, even if a lawyer manages to give advice that is correct and complete at the moment, without the lawyer’s continued involvement, that advice may become bad advice as the situation develops or new facts are discovered.
The danger of off-the-cuff advice is not constrained to friends and family. When a client calls and asks a pressing question at an inopportune time or throws out an unrelated inquiry during a scheduled call, it invites a lawyer to respond immediately without getting the whole story or doing the necessary research. Answering a pressing question with “the answer is probably X, but we should meet and discuss,” may be an invitation for clients who want immediate answers to assume that they have received definitive advice. For this reason, lawyers should never provide partial advice or educated guesses. Instead, schedule time with the client to discuss the new issue, and make sure you have all the facts.
Informally advising nonclients may lead them to believe that an attorney-client relationship has been formed, or that one may be formed in the future. Generally, a person’s reasonable, subjective belief that they have formed a relationship with a lawyer is adequate to create an attorney-client relationship for purposes of legal ethics, and ambiguous circumstances will usually be interpreted in favor of a putative client. See DeVaux v. American Home Assurance Co., 444 N.E.2d 355 (Mass. 1983).
Consider a hypothetical lawyer who chats at a dinner party with an acquaintance who recently slipped and fell at a garage and is considering a lawsuit against the garage’s owner and management company. The lawyer cautions the acquaintance to seek representation soon, commenting that the limitation period for personal injury actions is three years. The acquaintance relies on that statement in delaying the retention of counsel, and ultimately discovered that the suit is time-barred because the property in question was owned and managed by the federal government and a notice of claim was not timely presented. The initial lawyer was not intending to provide legal advice, but could have exposure to a malpractice suit.
Model Rule of Professional Conduct 1.6 requires that lawyers keep clients’ confidences, and Model Rule 1.18 requires that lawyers do the same for prospective clients (meaning any person who consults the lawyer about the possibility of forming an attorney-client relationship). See Admonition No. 06-24 (2006), https://bbopublic.blob.core.windows.net/web/f/admon2006.pdf (attorney received admonition for improperly disclosing information about a prospective client that she learned from referral paperwork).
When advising friends informally, it can be difficult to draw the line on when an attorney-client relationship is formed, and when confidential information is being received. Imagine, for example, a lawyer commiserates with a friend about the friend’s marital difficulties, and the friend admits to having an affair. The friend also asks the lawyer for advice about how to protect her assets. The lawyer, distraught by the revelation of an affair, confides in a mutual acquaintance. The mutual acquaintance discloses the information to the friend’s spouse, who immediately files for divorce. The friend later may contend that she went to the first lawyer for legal advice, and that the lawyer breached her obligation to maintain their conversation in confidence.
Unauthorized Practice of Law
A final concern is that lawyers giving informal advice to friends in other states may inadvertently engage in the unauthorized practice of law in violation of Model Rule 5.5. Rule 5.5(c) does allow lawyers to provide services outside of their jurisdictions on a temporary basis, but—in the absence of local co-counsel or a relationship to an ongoing matter—such services are only permissible if “reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” As such, advice given outside of a regular client relationship to a friend in another state could pose a hazard, especially when the advice is also outside the lawyer’s regular practice area.
What Should a Careful Lawyer Do?
Warnings against dispensing informal legal advice are nothing new, but the reality is that declining to discuss a friend’s legal issues can be hard. To handle inquiries without being seen as rude or unhelpful, lawyers should consider the following maxims when asked for advice, opinions, or information about the law:
- Explain that you would never want to give incomplete or incorrect guidance.
- If appropriate, offer to arrange a formal intake meeting at your firm (after a conflict check) so that you can dedicate the necessary time and resources to the inquiry.
- If the asker insists that they do not need a lawyer but “just a little information,” offer resources instead of specific information. For example, if asked about eviction procedures in Massachusetts, do not explain the timing of a summary process action, but instead send a link to a resource on tenants’ rights.
- If you are in a situation where you decide that you cannot avoid providing some advice, provide it only in a generalized fashion. For example, instead of telling a friend that they have three years to file a tort claim, tell them that generally the statute of limitations on tort claims in Massachusetts is three years, but specific circumstances could involve shorter notice periods and you cannot advise them specifically.
- If the questions continue, send the asker an email clarifying that you are not their lawyer, reinforcing that nothing you have said is legal advice, and offering to schedule a formal consultation or make a referral, as appropriate.
- Promptly send letters declining all explicit requests for representation that you do not wish to accept, even if the requests are informal.
Next time someone asks if they can “ask you a couple of questions,” resist the urge to jump in and start trying to help. Remind yourself that both you and the asker will be better served if you take a step back and make a referral or ask them to make an appointment through your office. If you use the strategies from this article to graciously explain the need for thorough vetting, your friends should understand. If not, hold firm—it is far better to be the punchline of a worn-out lawyer joke than an example in next month’s installment of Practicing Professionally.
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