FRIENDS FAMILY AND FAVORS. Or No Good Deed Goes Unpunished
Stacey Smith

After we enter law practice, inevitably our friends and family seek some advice or recommendations from our newly minted legal minds. Our close relationships with friends and family often cause us to treat their requests a bit more informally than we would otherwise. But sometimes, despite our best intentions, our informal advice or assistance can result in a legal malpractice claim. Consider the following example, which may seem familiar to some of us.

Attorney Jones is a partner in ABC Firm, which practices primarily in the business and tax planning areas. Despite this practice area focus, Jones has some family law experience. After graduating from law school and before receiving his tax LLM, Jones worked with a domestic relations attorney.

One day, Mr. Jones' neighbor, Mrs. Doe, requests his assistance in completing the "do-it-yourself" marital dissolution forms. Mr. Jones has met the neighbor before, but does not know Mr. or Mrs. Doe very well. However, Mrs. Doe is upset and, being a compassionate individual, Mr. Jones agrees to assist.

Mrs. Doe brings over the forms, which are all mixed up, even though it is a simple dissolution. Feeling frustrated, Jones tells Mrs. Doe that he will take them to the office and compile the proper paperwork. She is thrilled and promises to pay him for the work. He tells her it is a simple matter and not to worry about the bill.

Mr. Jones takes the file materials to his office and asks his assistant to create a physical file, but does not request that she run a conflict check or do any other standard file opening procedures. Mr. Jones has a very busy practice. Since it is close to the year's end, he is concentrating on ensuring that his tax and business clients' files are properly arranged for appropriate tax benefits. Meanwhile, Mrs. Doe's file sits in a corner of his office.

Mrs. Doe tells Mr. Doe that Attorney Jones is representing her, and that Mr. Doe should send all paperwork to Jones. Jones receives the paperwork, but he simply sets it on the Doe file in the corner. The Doe file receives no attention; no associate is working on the file and Mr. Jones is buried under his tax work.

Finally, Jones emerges from end-of-year chaos, and in February attends to the Doe file. He notes that several important court deadlines are dangerously close. He prepares the paperwork and files it with the court, naming himself as attorney of record. Just before the final hearing on asset distribution, Mr. Doe discovers that the ABC firm handles all of his business planning matters. Mr. Doe's lawyer demands that Mr. Jones withdraw. Having no choice, Mr. Jones withdraws. Mrs. Doe decides to proceed on her own. The court awards the bulk of the marital assets to Mr. Doe, including Mr. Doe's retirement fund. Mr. Jones had been completely unaware of the retirement fund. Mrs. Doe then hires an attorney for an appeal. The appellate attorney writes to Mr. Jones and asks that Jones notify his malpractice carrier.

How could something like this happen when Mr. Jones merely was trying to help his neighbor? Mr. Jones fell into a very common trap set when an acquaintance or friend asks for a legal favor. Did you recognize any of the following problems in the Jones - Doe situation?

* Assuming the case is "simple," without investigating or inquiring further. This assumption is particularly dangerous - in domestic relations cases, a "simple dissolution" and in estate planning matters, a "simple will." Attorneys often fail to ask appropriate questions regarding assets, and clients often fail to give sufficient details on assets.

* Failing to adequately research current status of the law. Mr. Jones had not handled a domestic relations case in a number of years and came dangerously close to missing court procedures and deadlines. He overlooked entirely the retirement fund issue.

* Failing to complete a conflicts check. Here, Jones did not treat the client as a "firm" client. He relied only upon his personal knowledge that previously, he never represented Mr. Doe. Given the nature of a marital dissolution and the central role that asset valuation and distribution play, the ABC firm's representation of Mr. Doe in business matters was sufficiently related to the dissolution to cause a real problem for Mr. Doe.

* Failing to follow standard file opening procedures. Had Mr. Jones followed his firm's standard file opening procedures, the conflict check would have been done, the important dates would have been entered on the calendar, and someone else in his office would have been aware of the important case deadlines that Jones almost missed.

* Failing to have a fee agreement. This causes a host of problems - not the least of which is that most states require fee agreements. First, even though Jones took Mrs. Doe's matter on a pro bono basis, he and Mrs. Doe failed to address litigation costs. Second, the lack of a written agreement created problems in the scope of Mr. Jones's representation. Initially, Jones believed he was only going to help Mrs. Doe with her paperwork, yet after realizing that Mrs. Doe believed he was the attorney handling her entire case, Jones ended up as the attorney of record for the entire matter. Third, in other types of cases, a failure to define the scope of the representation causes problems because the client believes you are "her attorney" in all matters (without mentioning this to you), which sets you up for missed deadlines, etc.

Although the problems that arose in the Jones - Doe matter seem obvious, unfortunately ALPS continues to see claims arising from situations in which a well-meaning insured commits one of the above errors. We suggest that when a friend, family member or acquaintance requests help with a legal problem, you should do one of two things: 1) politely decline to become involved, suggesting they speak with a legal services group or your bar association's attorney referral service; or 2) agree to represent them and treat them as real clients, following all of your normal risk management procedures. Remember - you do nobody a favor when you relax your normal, prudent risk management procedures.

About the Author Ms. Smith is a Western Regional Claims Examiner with the Attorneys Liability Protection Society in Missoula, Montana.