Whether a lawyer can defend a relative or not comes down to certain legal and professional considerations. In this article, we’ll go over case studies and some key points
Updated 14 March 2024
For many people, a lawyer in the family is the best choice to get free, or almost free, legal advice. They are often the go-to when there are legal issues that family members face.
But the question is, can a lawyer defend a relative or a family member? Is it ethical for a lawyer to represent a family member?
The answers to these questions, including other related topics, are discussed in this article. This article can be used by lawyers to educate their family members about legal representation in Canada.
This can also be used by lawyers who themselves are conflicted whether to defend a relative or not.
Generally, a lawyer can defend a relative or represent them in or outside the court.
Just as the courts will not interfere with litigants who represent themselves, they also do not intervene in allowing a litigant to choose a lawyer who is their relative.
However, there are exceptions to this rule, which are found in the rules of professional conduct of each provincial and territorial law society.
There are also exceptions found in the provincial and territorial statutes governing the legal profession in their jurisdictions.
Simon Chester, counsel for conflict and regulatory matters at Gowling WLG, says that if the lawyer is a specialist, and the work doesn’t involve family sensitivities, it’s probably okay to represent a family member.
“For example, if a lawyer has a reputation in the community for dealing with driving while impaired cases, the fact that she is doing it for a relative is irrelevant.”
Chester adds that if the task is essentially navigating a government system or registry, it shouldn’t pose a problem. “So, somebody who does a lot of house purchase and sales would be perfectly fine handling the legal aspect of a house purchase for a relative.”
The answer differs if the question is if a lawyer should represent a family member.
“There are many risks in representing a family member,” says Juda Strawczynski, director of practice with LawPRO, the professional liability insurer for Ontario’s lawyers. “It’s risky because you already have a relationship, which can impact on your ability to give competent, candid, objective legal advice” Strawczynski says.
A lawyer may feel a duty of loyalty to a friend or relative, but they also have the duty of loyalty to the legal profession.
This is where a potential conflict of interest may arise. In such cases, the lawyer may have to limit their legal engagement with the client-relative.
There is a risk that the lawyer may not be insured to act on behalf of family members. This applies even if the law society’s rules don’t specifically prohibit it.
In BC, one of the exclusions in a compulsory professional liability insurance policy is an application of this insurance risk. This exclusion provides that the policy denies a claim arising from an error where the payment would directly or indirectly benefit the lawyer, their family, or the law firm.
Family members in these cases cover spouse (including a common-law spouse), children, parents, and siblings.
For example, a lawyer settles a family member’s personal injury claim, and is later sued for professional negligence for mishandling the case. Applying this exclusion, the lawsuit against the lawyer won’t be covered because its payment would directly benefit the lawyer’s family member.
Another risk in representing family and friends is that a lawyer may take on a legal matter in an area of law outside of their capacity, just to be accommodating.
“In some cases, the lawyer may be asked to act for a family member even though the lawyer doesn’t have experience in the area of law,” says Strawczynski. “It’s always safer for lawyers to avoid dabbling in new areas.”
Chester adds that there is always a risk that a lawyer will fall short of the normal standards they would apply to any other work when representing a relative.
“We’ve all heard relatives say, ‘You’re a lawyer, of course you know how to draft a will.’ But if you spend all your time doing intellectual property or business law, your memory of what’s involved in drafting a will may date back decades,” Chester says.
In this case, the client-relative may be deprived of the best legal representation because the case is outside the lawyer’s expertise.
There are also risks to the client intake process and payment of fees when a lawyer defends a dear relative or a close friend. Because of this prior close relationship, there might be too much informality which results in some important steps in the client intake process not being done.
For instance, files may not be opened, correspondence might not be up to date, and agreements and instructions are not put into writing. This will put both the lawyer and their client at some risks down the road, such as when conflicts arise and there’s no black-and-white documentation to refer to.
In addition, there can be some awkward moments between the two regarding how the lawyer will be paid. The friend or family member may expect a “friends and family” discount and may not be prompt in paying whatever fee is negotiated, or not pay at all.
On the side of the lawyer, it’s likely harder to “fire” a client who is a relative or close friend when things go south.
Again, a client who is represented by a lawyer who does it only for free or at a reduced rate may not get the same level of competent services as that of a lawyer who is not a relative.
Although this may not apply to all, a lawyer who defends a relative only as a favor might not also apply the same diligence as they would give a full-fee client.
There may also be risks in confidentiality if a lawyer defends a relative or a close friend. The relationship between them may be affected because the legal matter is a private matter, or a sensitive case involving family law.
Lawyers are bound by the strict confidentiality of all information acquired during the professional relationship, except for certain cases. This is according to the Rules and Codes of Professional Conduct of the provincial or territorial law societies.
However, there can still be risks as to this confidentiality rule because of the close relationship between the lawyer and the client. In situations such as social gatherings, some sensitive information might be shared more widely. This should not have happened.
Lawyers may turn to their law societies and the codes of conduct that apply to them as for the rules on potential conflicts of interest. This includes materials from the Canadian Bar Association (CBA), Federation of Law Societies of Canada (FLSC), and the provincial or territorial law societies.
Chester says that “most regulators don’t actually prohibit acting for family members, although they insist that lawyers be competent and avoid negligence.”
In 2019, the CBA’s Code of Professional Conduct was discontinued in favor of the FLSC’s Model Code of Professional Conduct.
Generally, the Model Code states that a lawyer can assist a close family member or colleague.
The Model Code shares some examples when conflicts of interest may occur:
The Model Code explains that this relationship may hinder the lawyer’s duty to provide objective professional advice to the client.
The provincial and territorial law societies have their own Code or Rules of Professional Conduct, which outline if a lawyer can defend a relative or not.
These Codes or Rules will apply when a conflict of interest arises with family members or friends.
Here are some examples of what these law societies’ Codes or Rules say about conflicts of interest when defending a relative, family member, or friend:
A lawyer must be honest and candid when advising clients and they’re prohibited from acting when there is likely to be a conflict of interest. This may arise when the lawyer’s personal relationships interfere with their duty to provide objective, disinterested professional advice to their client.
The close personal relationship may jeopardize the client’s right to have all information concerning their affairs held in strict confidence. It would be challenging to determine if certain information was acquired within the lawyer-client relationship or not.
A lawyer can advise and defend a relative or friend because a relationship by itself does not determine conflict of interest. However, it is best to refuse the client if:
As such, a lawyer can defend a relative or friend since it’s not strictly prohibited by these guidelines.
Watch this video to learn more about the importance of learning about conflicts of interest as a lawyer:
Articles related to lawyers defending a relative and other legal practice concerns can be found on our Practice Management page.
Chester says that the one thing to avoid is highly contentious litigation, particularly when the family interests are divided.
“It would be absolutely inappropriate for a family member to try and litigate a custody dispute,” he says. “The court would have real doubts about the lawyer’s independence and objectivity.”
Common law provides guidance to lawyers and clients in determining whether a lawyer can defend a relative or not.
In Zaldin v. Zaldin, the Superior Court of Justice applied Ontario’s Rules of Professional Conduct in determining whether there is a conflict of interest. The Court here ruled that the lawyer who represented his nephew (the husband in a custody dispute) had to withdraw.
This is because of the lawyer’s close personal and business relationship with his nephew, and with his nephew’s father (the lawyer’s brother). The lawyer’s brother is also a lawyer who works at the lawyer’s firm.
The Court reiterated the rule that the standard for removing a lawyer in a case is "that of a reasonably informed member of the public." A lawyer could be removed from a case if a sensible person thinks it's necessary.
The court also mentioned that in family disagreements, the appearance of impropriety might be enough reason to remove a lawyer from the case.
In another Ontario case, Windsor-Essex Children’s Aid Society v. B.D., the Court of Justice ruled that a lawyer cannot represent his own daughter.
Applying the standard for removing a lawyer in a case, the Court found that the lawyer is personally and emotionally involved with both his daughter and her child.
It also reiterated the rule that the jurisdiction to remove a lawyer is an inherent right of the Court in a case which it will give audience.
If a lawyer decides to take the case of their friend or family member, here are a few points to consider:
Chester suggests formalizing the relationship if a lawyer is taking up a relative’s or friend’s case. This may include:
Schedule a meeting to talk about the case. Avoid talking about the case during family gatherings or in an informal telephone conversation. Check for any potential conflict of interest.
Strawczynski suggests that the safest thing for a lawyer to do when asked by a family member is “to decline to act for family me mbers by letting them know that you simply don’t act for family.”
If appropriate, Strawczynski says, “refer them to other legal professionals for help.” Explore a reduced billing rate with lawyers at the same firm for friends or family clients. They could also be referred to another firm where a reduced rate might be offered as a professional courtesy. Another option is to share a list of the best lawyers in Canada as ranked by Lexpert to help them find a lawyer.
The decision to defend a relative in a legal matter involves careful consideration of ethical guidelines, professional risks, and the potential for conflicts of interest. While it is generally permissible for lawyers to represent family members, they must approach the matter with caution and professionalism.
Whether a lawyer can defend a relative depends on the specific circumstances of the case and the rules of their governing law society. Lawyers must ensure that their representation does not compromise their ability to provide objective and competent legal advice.
What other advice can you share on whether a lawyer can defend a relative? Tell us in the comments below.
