Family Fiducia v. Family Feuds: Proceed Diligently if Electing to Represent Family Members as Clients

In late December, Slaw received two recommended Op-Ed submissions from David Tanovich‘s legal ethics class at the University of Windsor. Today, we’re running them both. 

With holiday dinners right around the corner, family drama seems unavoidable as the strains of proximity and unresolved grievances test relationships during gatherings. This was certainly the case for u/redpanda891, who took to Reddit to after a disconcerting family dinner: “[Am I the A**hole] for calling my sister’s husband a piece of s**t because he’s representing my ex in our divorce?”[1]

In particular, the fiduciary nature required of the lawyer-client relationship aggravates the concerns at the heart of this strife as it challenges the duties of loyalty expected of a lawyer to (i) avoid conflicting interests, (ii) commit to their client’s cause, and (iii) maintain candour.[2] The issue at hand is particularly concerned with this first tenet of loyalty concerning conflicts.

As a consequence of situations alike, a critical question arises: Can and/or should a lawyer represent a family member? The answer is generally, yes, but is further appropriately qualified by pressing considerations.

Turning to the authorities

Firstly, lawyers are required to maintain honesty and candour when advising clients, requiring disclosure of any potential conflicts adverse to the client’s interests.[3] In u/redpanda891’s case, the client would undoubtedly be aware of the potential conflict in electing to retain his ex-brother-in-law as counsel. Once made aware and consenting to the same, representation is a non-issue.

Concerning the family relationship, the Law Society of Ontario (LSO) states, “a lawyer is permitted to … offer assistance to a person with whom the lawyer has a close family or professional relationship.”[4] However, this is balanced by prohibiting the use of “unconscionable or exploitive or other means that bring the profession or the administration of justice into disrepute.”[5] This is inclusive of but not limited to, means that “amount to coercion, duress, or harassment” and “take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover.”[6]

In addition, the LSO further alerts licensees to particularly concerning situations. For example, in situations in which “a lawyer is asked to advise the client in respect of a matter in which the lawyer, the lawyer’s partner or associate or a family member has a material direct or indirect financial interest,” the lawyer’s own interests can impair representation loyalty.[7]

Nevertheless, in clear-cut matters such as real-estate transactions, it is unlikely that family sensitivities will pose a conflict.

The LSO also indicates certain ambiguous scenarios may warrant heightened considerations, such as those that involve “a close personal relationship, sexual or otherwise, with a client who is in a family law dispute.”[8] Law Society of Upper Canada v Hunter undoubtedly exemplified this concern as counsel’s professional misconduct demonstrated that sexual/romantic relationships with a client raises red flags as to whether the lawyer faces a conflict of interest or is otherwise jeopardizing the solicitor-client relationship.[9]

Interventions, though limited, have also been warranted when lines are crossed during highly contentious litigation matters wherein the lawyers’ personal and emotional attachments to their familial clients impaired appropriate representation.[10]

The above certainly highlights how a lawyer’s objectivity may be challenged by close personal relationships; however, the concerns, though highlighting critical exceptions, are not the rule.

Following Judson v Mitchele, which considered the governing principles, the court noted that there was not a presumptive prohibition that did not allow counsel to represent a family member nor a presumptive conflict that arose from such representation.[11] Accordingly, lawyers may represent family members, so long as the integrity of the justice system is safeguarded; balancing the competing interests of right to counsel of one’s choosing and the administration of justice.[12]

Hence, the onus ultimately remains on lawyers to determine whether there are conflicts on a case-by-case basis by (i) evaluating their pre-existing relationships and (ii) its potential relevance to/impact on the matter to be undertaken.[13]

Given the foregoing, u/redpanda891’s relationship would not have disqualified her brother-in-law’s representation of her ex. However, stating she “was going to lose a lot”[14] if she proceeded with the divorce (i) contravened Rule 7.2-6, prohibiting communications of a represented individual without counsel present[15] and (ii) was insensitive of her vulnerable state. Thus, posing a potential argument for conflict warranting the removal of counsel and/or disciplinary repercussions.

Where do we go from here?

The largest takeaway here is discretion.

The LSO’s current position, highlighting areas for concern, but allowing lawyers to ultimately determine who they may represent is most fitting in its current form as:

(i) the jurisprudence illustrates the truly contextual analysis required to make apt deliberations – best handled by lawyers who may evaluate all the facts first-hand; and

(ii) it would not be practical to specifically outline each and every scenario that poses a conflict given the large scope for variance.

Thus, if the matter at hand challenges professional standards, as in u/redpanda891’s case, turning down the file and/or referring it to another lawyer may be an appropriate countermeasure.

However, when diligent representation is deemed possible, following a comprehensive contemplation of potential conflicts, there is no reason to stop lawyers from representing family members.

Sakithyan “Sai” Bala
2L, Faculty of Law, University of Windsor

__________________

[1] Matt Keeley, “Lawyer Bashed for Representing Brother-in-Law Over Wife’s Sister in Divorce”, Newsweek (19 October 2022), online: < https://www.newsweek.com/lawyer-bashed-representing-brother-law-over-wifes-sister-divorce-1753398>.

[2] R v Neil, [2002] 3 SCR 631 at para 19.

[3] The Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, rule 3.2-2, commentary 1.1.

[4] Ibid, rule 4.1-2, commentary 1.

[5] Ibid.

[6] Ibid, rule 4.1-2.

[7] Ibid, rule 3.4-1, commentary 4.

[8] Ibid.

[9] Law Society of Upper Canada v Hunter, [2007] ONLSHP 27.

[10] Zaldin v Zaldin, [2014] OJ No 5355; Windsor-Essex Children’s Aid Society v. D.(B.), [[2013] OJ No 481.

[11] Judson v Mitchele, [2011] ONSC 6004 at paras 34-35.

[12] Ibid, at paras 29-31.

[13] The Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, rule 3.4-1, commentary 5.

[14] Matt Keeley, “Lawyer Bashed for Representing Brother-in-Law Over Wife’s Sister in Divorce”, Newsweek (19 October 2022), online: < https://www.newsweek.com/lawyer-bashed-representing-brother-law-over-wifes-sister-divorce-1753398>.

[15] The Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, rule 7.2-6.