I Have A Friend That's A Lawyer . . .
The Tennessee Appellate Court's recent decision in the Brentwood Academy lawsuit reminded me of an article I wrote some time ago about "friends" who make the fateful decision to provide legal advice to others:
I have a generally applicable rule against providing legal advice to friends and family. During my legal career, I have learned (sometimes the hard way) of the precarious position a lawyer assumes when representing a family member or a close friend. What happens, for example, when resolution of the dispute obtained by the attorney is less than favorable for this type of client? Such a result can lead to the end of a friendship or a disgruntled relationship with a cherished family member. Can the lawyer remove themselves from their personal relationship and provide truly independent advice? Will the client do the same in considering the advice? Discussions with the friend or family member over payment, if any, for legal services can also be challenging.
So, you will not be surprised when I recommend that a client should seek legal advice from a lawyer who is not a friend or family member. However, if you choose to disregard this advice and do so, you should make it clear that the lawyer and the client are engaging in a professional relationship whereby the attorney-client privilege and the work product doctrine apply to your communications. Based on my limited understanding of the BA case, it does not sound like this was done.
In Tennessee, the attorney-client privilege provides as follows:
No attorney, solicitor or counselor shall be permitted, in giving testimony against a client, or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person, during the pendency of the suit, before or afterwards, to the person's injury.
A key component of the privilege is that the client consults the attorney in a professional, as opposed to a friend capacity. Unless this requirement is satisfied, the privilege may not apply.
One of the leading cases where a court determined that the privilege did not apply to an attorney acting in a friend capacity involved a lawyer, John Holden ("Holden"), who arranged for an alderman to meet with three criminal attorneys regarding allegations that the government official had engaged in racketeering. The purpose of the meetings was for the alderman to explain his situation, seek legal advice, and decide which of the three attorneys, if any, to retain.
At one particular meeting, Holden informed a criminal defense attorney that "he was a long-time friend" of the alderman. In fact, it was established that he had been a friend of the alderman for 20 years, had dated the alderman's niece, and that he looked up to and even loved the alderman. Holden did not inform the criminal defense lawyer that he was acting as the alderman's attorney, rather the evidence adduced at the district court level indicated that Holden was the alderman's friend and potential character witness. It was also established that Holden could not represent the alderman because of a potential conflict with Holden being a local police officer in addition to being a lawyer.
Holden countered that he was "basically [the alderman's] 'family lawyer'" and that he had represented the alderman in several different proceedings, including his daughter in a divorce, his wife in a civil matter, his son regarding a custody dispute, drawing up miscellaneous contracts for the alderman that never went past the drafting stage, and talking with the alderman about setting up a charitable organization. The government sought to admit the contents of the alderman's conversation with Holden and the criminal defense attorney, and the alderman resisted citing attorney-client privilege. The district court held that there was no privilege based on Holden's capacity as a friend.
On appeal, the reviewing court noted that the key issue was whether the alderman's remarks were "'made in confidence' or whether Holden's presence at that meeting destroyed any reasonable expectation of confidentiality . . . [which] in turn hinges on whether Holden was present in his capacity as [the alderman's] friend, supporter, and potential character witness." The alderman argued that Holden had been his family lawyer, and as such, his presence at the meeting at issue did not vitiate the privilege. In response, the appellate court stated that the alderman:
[F]ails to appreciate the fact that the critical inquiry is whether Holden was acting in his capacity as professional legal advisor-as opposed to his capacity as a long-time friend who happens to be a lawyer-during his interactions with [the alderman]. The privilege extends only to communications between a client and a professional legal advisor 'in his capacity as such.' . . .
The court concluded that the alderman "simply failed to meet his burden of establishing that his present involvement with Holden was with Holden in his capacity as a legal advisor."
What can you do to ensure that the attorney-client privilege and work product doctrine apply to the relationship between you and your lawyer? First, take my advice and retain an attorney that is truly independent. You will benefit in a number of ways from doing so over and above concerns about applicability of the privilege. However, if you choose not to do so, you should emphasize that your relationship with the attorney is professional in nature. Memorialize your relationship by executing an engagement letter. If possible, the letter should provide for a retainer amount or payment terms in exchange for the legal advice.
When asked to describe the relationship (in a deposition setting, for example, or even informally), state in clear and unambiguous terms that the attorney is your lawyer first and your friend second. The attorney-client privilege is one of the oldest and most sacrosanct privileges in the history of the law. It protects the ability of a lawyer and client to communicate open and freely regarding legal issues.
You and your legal counsel should do everything possible to ensure it applies to your professional relationship.