Lawyers are often asked by family members for advice about legal problems. It’s understandable for you to want to help, but acting for family is risky, and we discourage you from doing so.

There is a significant risk of conflict of interest when acting for family

The judiciary suggests that that one reason for the ‘comparative dearth of authority’ in relation to lawyers acting for relatives ‘might be that the potential conflict of interest is so obvious that modern lawyers refer matters involving their relatives to independent solicitors’ (Temby & Anor v Chambers Investment Planners Pty Ltd & Anor [2010] FMCA 783 per Lucev, FM at para. 19). 

The ‘obvious’ potential conflict of interest is that you may be financially, materially or emotionally invested in your family member’s matter, to an extent beyond what might be expected in a typical lawyer-client relationship (Queensland Law Society, Acting for Family and Friends). Note that it is particularly imprudent to act in a transaction in which you have a personal financial or material interest and that involves your family member unless the other party is separately represented or advised (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [6.50]). 

While some matters might seem straightforward and unlikely to raise any issues (e.g. providing advice on a traffic infringement or consumer rights claim), other matters present a much greater risk of personal conflict and threat to your independence, for example, complex family law matters, family violence, guardianship issues, criminal law or litigation. 

Because there is a heightened risk that your advice will be motivated by subjective rather than objective considerations, you should be wary of acting for family. 

Other risks to be aware of

Acting for family also increases the risk that you will fail to meet your professional obligations to act in your client’s best interests, act with integrity, and deliver legal services competently, diligently and as promptly as reasonably possible. You should be aware that: 

• Your family member may place greater trust in you than a typical client would and simply assume that you are acting in their best interests, without further inquiry (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [6.50]).
• You may experience the weight of expectation or pressure to act outside the bounds of your professional obligations for a family member (see a relevant VCAT case here).
• You might accept what your client tells you without question or, conversely, disregard what they say, because of who they are and your relationship with them. That is, your ability to forensically examine their case with the appropriate degree of professional detachment may be inhibited (see Queensland Law Society, Acting for Family and Friends).
• You might make assumptions about what is in your client’s best interests, based on your relationship with them, rather than an assessment of the circumstances of their case.
• You may be less inclined to advise your client of the risks or weaknesses in their case, as it is often easier to be frank with strangers than it is to tell someone close to you that their case is hopeless or without merit (Róisín Annesley’s 2019 Good Conduct Guide: Professional Standards for Australian Barristers, at 4.22).
• You may accept work beyond your competence or area of expertise (Queensland Law Society, Acting for Family and Friends). 
• You may be less scrupulous with issues of professional responsibility (see Gino Dal Pont 2016, Lawyers' Professional Responsibility, at [6.50]). For example, other family members may seek to draw you into a discussion of your client’s case, putting their confidentiality at risk. You may be more likely to be rude or aggressive in pursuit of your client’s interests if you are too emotionally involved in their case – breaching your duty to be honest and courteous. You may fail to discover documents, as required (see Guss v Law Institute of Victoria Ltd [2006] VSCA 88). 
• You may be asked to represent a family member in a legal matter in respect of which you have also acted as a witness or support person (e.g. you were present when they were stopped in connection with a driving offence or you supported them at an employment disciplinary meeting). This may give rise to a conflict between your duty to your client and your duty to the court in the case that you are required to give material evidence before a court (see r 27 of the professional conduct rules). 
• You may be tempted to cut corners, or provide a lower standard of service than you would provide to other clients, particularly where you are not charging for your services, or are charging a significantly reduced rate (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [17.70] and Queensland Law Society, Acting for Family and Friends). 
• Further, if you do provide free or discounted work to family members, you run the risk that if they are subsequently dissatisfied with the outcome of their case, they may accuse you of not making your best efforts due to the lack of financial incentive involved (see Queensland Law Society, Acting for Family and Friends). 

You should also carefully review your professional indemnity insurance policy if you are considering acting for a family member. There may be provisions which impact on the cover provided by the insurer (for example, Legal Practitioners’ Liability Committee policy for private law practices indemnifies a practice for claims by a 'relative’ and ‘associated enterprise’ (both as defined in the policy) but contains an indemnity-back from a principal of the practice who handles or supervises matters for their own relative or associated enterprise).

How to have the conversation with family members 

There are ways to help family members (or friends) with legal issues that don’t involve taking on their matter.  You can use your expertise to support them by helping them find a good lawyer in the relevant field or direct them to a resource such as the Law Institute of Victoria Find Your Lawyer Referral Service. It can also be very helpful for you to assist them to prepare for their first meeting, for example, by creating a timeline of events, identifying the documentation they will need to take with them, and writing down questions to ask their lawyers.

The Queensland Law Society offers some useful guidance on how to tell someone that you can’t act for them, which we endorse:

• if it is not your area of practice, explain that they would receive much better assistance from an expert in the relevant area
• explain that your relationship may cloud your professional judgement and your ability to bring an independent perspective, which could in turn affect your ability to do a good job, and
• explain that you do not want to jeopardise your relationship with them, which may happen if you act for them.

We agree with the Queensland Law Society that if you do decide to act for a family member, it is prudent to ensure that the scope of your retainer or agreement to act is express and clear and acknowledges the existing relationship. You should record the advice given in relation to possible issues, including the potential for a conflict of interest to arise and whether you have encouraged the client to seek independent advice, which is highly recommended (Queensland Law Society, Acting for Family and Friends).