You generally don't have the right to have an attorney represent you in a family law case (such as divorce, child support, and custody). Going back to the question we asked in the title of today's blog post, the answer is yes. Legally, you can have a family member, a friend of the family, or even yourself as the primary representative in your case. However, having a family member who represents you who is not a lawyer would not be much different from having a lawyer.
While you can trust this person a little more, Dan is a lawyer who doesn't do him much good in the long run. We have already talked about how specific knowledge of family law is fundamental in a family law case. The second part is that we've already covered how meeting with an attorney in person can make it more comfortable to hire an attorney, and we're going to put you in a position where you're more likely to. The answer to the first question is yes with reservations.
Courts generally do not intervene to allow a family litigant to choose their lawyer, just as they generally do not interfere with litigants who represent themselves. Loyalty to a current customer prohibits making representations directly adverse to that customer without that customer's informed consent. Therefore, without consent, a lawyer cannot act as an advocate in a matter against a person that the lawyer represents in another matter, even when the matters are not related at all. The client to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively.
In addition, the client on whose behalf the adverse representation is being conducted may reasonably fear that the lawyer will pursue that client's case less effectively out of deference to the other client, that is,. Similarly, a directly adverse conflict can arise when an attorney is required to question a client who appears as a witness in a lawsuit involving another client, such as when the testimony will harm the client who is represented in the lawsuit. On the other hand, the simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as the representation of competing economic companies in unrelated litigation, normally does not constitute a conflict of interest and therefore does not require the consent of the respective clients. Directly adverse conflicts can also arise in transactional matters.
For example, if a lawyer is asked to represent the seller of a company in negotiations with a buyer represented by the lawyer, not in the same transaction but in another unrelated matter, the lawyer would not be able to perform the representation without the informed consent of each client. Even where there are no direct warnings, there is a conflict of interest if there is a significant risk that a lawyer's ability to consider, recommend, or conduct an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer who is asked to represent several individuals seeking to form a joint venture is likely to have material limitations on the lawyer's ability to recommend or defend all possible positions each may take because of the lawyer's duty of loyalty to others. The current conflict excludes alternatives that would otherwise be available to the customer.
The mere possibility of subsequent harm does not in and of itself require disclosure and consent. Critical questions are the likelihood of a difference in interest occurring and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or exclude courses of action that should reasonably be pursued on behalf of the client. In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by liabilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from the service of an attorney such as trustee, executor or corporate director. The lawyer's own interests should not be allowed to have an adverse effect on the representation of a client.
For example, if the probity of a lawyer's own conduct in a transaction is seriously questioned, it can be difficult or impossible for the lawyer to give detached advice to a client. Similarly, when a lawyer has discussions about possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the representation of the client's lawyer. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to a company in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific rules related to a range of personal conflicts of interest, including business transactions with customers.
See also Rule 1.10 (personal conflicts of interest under Rule 1.7 are not normally imputed to other lawyers in a law firm). A lawyer is prohibited from engaging in sexual relations with a client unless the sexual relationship predates the formation of the client-lawyer relationship. A lawyer may receive payment from a source other than the client, including a co-client, if the client is informed of that fact and consents and the agreement does not compromise the lawyer's duty of loyalty or independent judgment to the client. If acceptance of payment from any other source presents a significant risk that the representation of the client's attorney will be materially limited by the lawyer's own interest in accommodating the person paying the attorney's fees or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting representation, including determining whether the conflict is consensual and, if so, that the client has adequate information about the material risks of the representation.
Clients can generally consent to representation regardless of a conflict. However, as stated in paragraph (b), some conflicts are not consentable, meaning that the lawyer involved cannot properly request such an agreement or provide representation based on the client's consent. When the lawyer represents more than one client, the issue of consentability must be resolved for each client. Consentability is generally determined by considering whether clients' interests will be adequately protected if they are allowed to give informed consent to representation burdened by a conflict of interest.
Therefore, under paragraph (b) (), representation is prohibited if, in the circumstances, counsel cannot reasonably conclude that counsel will be able to provide competent and diligent representation. See Rule 1.1 (jurisdiction) and Rule 1.3 (due diligence). Paragraph (b) (describes conflicts that cannot be consented to because representation is prohibited by applicable law). For example, in some states, substantive law states that the same lawyer cannot represent more than one defendant in a capital case, even with the consent of clients, and under federal criminal statutes, certain representations of a former government lawyer are prohibited, despite the informed consent of the former client.
In addition, decision-making law in some states limits the ability of a government client, such as a municipality, to consent to a conflict of interest. Paragraph (b) () describes conflicts that are not consensual due to institutional interest in vigorously developing each client's position when clients are directly aligned with each other in the same litigation or other court proceeding. If clients are directly aligned with each other within the meaning of this paragraph requires an examination of the context of the procedure. Although this paragraph does not preclude multiple representation by counsel of parties unfavorable to mediation (because mediation is not a proceeding before a court under Rule 1.0 (m)), such representation may be excluded by paragraph (b) (.
In some circumstances, it may be impossible to make disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to allow the other client to make an informed decision, the lawyer cannot properly ask him to give consent. In some cases, the alternative to common representation may be that each party has to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that the affected client may consider in determining whether common representation is in the interest of the client.
First, an attorney must zealously represent his client. To do that, you must feel that you have all the facts to your best knowledge and belief. People in difficult situations often feel ashamed or afraid to let the truth spread. However, when it comes to a family member, those details are even less present.
Think about it, who wants to tell their brother all the inner secrets of the marriage that is now falling apart? It can be an unpleasant situation, but most people withhold some of the dirty laundry. This puts a lawyer at a disadvantage when trying to represent her client. How can the law apply to a client's set of facts when they don't have the right set of facts?. Can a lawyer represent a family member in court? A lawyer is allowed to represent your family members, but is it advisable? This is not always the case, as lawyers have a duty and responsibility for impartial representation and offer objectives.
However, emotional disputes and conflicts can interact with the proper fulfillment of this responsibility. It is done when there is participation of the lawyers' families. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the resignation of the board lawyer, and the possibility for the corporation to obtain legal advice from another lawyer in such situations. Above all, the lawyer must keep his relationship with the family member or a family member transparent and confidential to succeed in the case.
As a result, each client has the right to know the existence and implications of the relationship between lawyers before the lawyer agrees to conduct representation. The lawyer should, at the beginning of common representation and as part of the process of obtaining the informed consent of each client, inform each client that the information will be shared and that the lawyer will have to withdraw if a client decides that any matter important to the representation should be retained. of the other. Another risk when representing family and friends is that an attorney may take on a legal matter in an area of law beyond their capacity, just to be complacent.
The message here is that a lawyer representing the family in court doesn't always win like Joe Pesci does in “My Cousin Vinnie”. If the lawyer represents the family member and loses the case, it will not be a good reputation for the rest of the family members. However, he also notes that “if the relationship is close and the matter is agrimonious, the lawyer may not be able to remain professional and objective and, in such cases, it is best that the lawyer does not act as a lawyer. If the lawyer's relative or family member chose you to represent them in court, there are some advantages they can offer.
Simon Chester, regulatory and conflict lawyer for Gowling WLG, says that “most regulators do not prohibit acting on behalf of family members, although they insist that lawyers be competent and avoid negligence. Once you determine that you do need to have an attorney in your family law case, the next question to ask yourself is how you should hire an attorney. I think personal contact can make a big difference in helping you know if that lawyer is the right person to represent you and your family. Lawyers can represent their family members, as offering a dispassionate lawyer is not essential when lawyers are emotionally involved in a specific case.
So, let's say an attorney resolves a family member's personal injury claim and is then sued for professional negligence for mishandling the case. . .