Help with attorney fee payments by friends or family members is common in criminal, juvenile, and family law. Typically, clients seek out the help of family members because they have an immediate need for legal representation but have no means or ability to pay for an attorney’s services, and they are not poor enough to qualify for legal aid representation by a public defender.
The financial assistance of a friend or relative may be the only alternative to “pro-se” representation (representing yourself).
How to Hire a Lawyer for a Family Member: Attorney-Client Privilege
Hiring a lawyer for someone else requires understanding the client’s role in a legal case.
For instance, when an individual hires an attorney, the attorney promises the client that whatever the client says to the lawyer is confidential and privileged. This “attorney-client privilege” applies when:
- An actual or potential client communicates with a lawyer seeking legal advice
- The lawyer is acting in a professional capacity, and the client reasonably relies on the advice as legal advice
- The client intended for the communication to be private, and the lawyer did not dissuade the client from relying on the advice
In essence, the attorney-client privilege is a rule that preserves the confidentiality of communications between clients and lawyers. Attorneys may not divulge a client’s secrets or be forced to reveal them to others. The purpose of the rule is to foster more effective representation by attorneys by encouraging clients, actual or potential, to openly share information with their attorneys.
It is important to note that the attorney-client privilege belongs to the client, not the person paying for the lawyer’s services. Only the client can decide whether to waive the privilege and give consent for their lawyer to communicate confidential communications with an outside party if you pay for someone else’s legal fees, that by itself does not entitle you to learn anything about the case that is confidential.
Many parents who hire a lawyer to represent their son or daughter assume that the lawyer is free to discuss the case details and related conversations with them. As a practical matter, in many cases, the issue is easily resolved because parents and their children agree to such disclosures in light of their close relationship and the seriousness of the situation.
However, some cases involve facts that the juvenile client feels uncomfortable discussing in front of his or her parents. In such a case, the lawyer is ethically bound to keep such information confidential and not reveal it to the parents. Similarly, when it comes time to make decisions regarding the case, such as whether to accept a plea deal or go to trial, only the juvenile client has the right to decide. Unless the child specifically tells the attorney to do so, the attorney cannot reveal to the parents the options or choices the child has made. The attorney cannot even reveal that the case is at a stage where options are being offered.
Exceptions to the Attorney-Client Privilege Rules
There are exceptions to the normal attorney-client privilege rules. Common exceptions when you may be able to be a part of confidential communications between the client and the attorney include:
- If you are assisting a disabled adult under a legal guardianship
- If you are assisting a blind or deaf family member
- If the family member has given the attorney written permission to include you in confidential communications
- If you were simply present at the communications. Including a person other than the client in a conversation breaks the attorney-client privilege. The thinking is that if the client is willing to discuss the matter with the attorney while someone other (other than the attorney’s employees) is present, the privilege is deemed waived.
When is it Inappropriate to Include Family Members and Friends in Privileged Communications?
As mentioned, a client may consent to allow a family member to be part of a confidential communication. However, an attorney must follow some rules to avoid committing legal malpractice, and, thus, will normally require the client to do more than simply give them verbal permission to speak with a family member.
First, the lawyer will determine whether the family member or friend poses a significant risk to the lawyer’s ability to represent the client. This most certainly applies If the family member or friend is another client of the attorney. In addition, if the family member significantly interferes with the attorney’s zealous representation of the client, an attorney will not allow a family member or third party to be party to confidential communications.
An attorney will not consent to a family member interfering with the client’s representation because doing so would subject the attorney to possible legal malpractice. However, an attorney will normally allow family members to be subject to confidential communications if they do not significantly impair their ability to represent the client and if the family member and client sign a written conflict of interest waiver.
This document will contain a statement that notes the attorney has explained the conflict of interest in allowing a third party into confidential communications, and the client has agreed to waive the attorney-client privilege.
What Happens if a Family Member Disagrees about How to Handle the Case?
The family member or friend who pays for the client to receive legal services and hires the lawyer has no control over the case. Once again, the attorney must represent the client and owe a duty only to the client, not to the person who pays the bill. Thus, it will be the client, not the family member or friend, who will decide such things as whether to accept a plea deal, settle the case, or proceed to trial.
What Happens to Unused Funds at the End of the Case?
After the case, any unused funds or unearned fees left in the client’s trust account will be returned to the client by the attorney. Notably, the attorney will not return the money to the person who paid the bill but rather to the client. Thus, if you pay for the legal fees for a family member or friend, at the end of the case, you must ask the client for the money left over after the case is closed.
If you believe the attorney used any unearned fees or refuses to return leftover funds to the client’s control, then be prepared to contact a local malpractice attorney to find out the next best steps.
Should I Seek an Attorney for my Family Member or Friend?
Assisting a friend or family member in finding legal representation may be the only option for persons who otherwise cannot afford a lawyer and don’t qualify for free legal representation. It is important to note that while it is fine for you to pay the bills, you will not be in charge of the case. You have no right to be involved in the case.
When seeking out an attorney for a family member or friend, you should seek an attorney that is experienced in these kinds of situations and is experienced in the field of law needed for your loved one’s case, whether they be a qualified and experienced attorney.
