Assistance with attorney fee payments by friends or a family member is a common occurrence in the areas of 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.
When a family member does not qualify for legal aid representation or for a public defender, the financial assistance of a friend or relative may be the only alternative to “pro-se” or self-representation.
However, hiring a lawyer for a family member requires an understanding of the role the client takes in the case. For instance, when an individual hires an attorney, the attorney makes a promise to the client that whatever the clients says to the lawyer is confidential and privileged.
Generally, 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 reasonable relies on the advice as legal advice; and
- The client intended that 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, under which attorneys may not divulge a client’s secrets or be forced to reveal them by others.
The purpose of the rule is simple, to encourage clients, actual or potential, to openly share information to their attorneys in order for attorneys to provide more effective representation.
It is important to note that the attorney-client privilege belongs to the client; this means that only the client can decide whether to waive the privilege and give consent for their lawyer to communicate confidential communications with an outside party, such as a friend or family member footing the bill.
Are Family Members Excluded from the Attorney-Client Privilege if They are Paying the Client’s Bills?
The short answer is no, unless an exception applies. Common exceptions when a family member may be able to be a part of confidential communications between a client and 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; or
- If you were simply present to the communications
Once again, a client may consent to allow a family member to be party to confidential communications. However, an attorney must follow some rules in order to avoid committing legal malpractice, and, thus, will normally require the client to do more than simply give them 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. If the family member or friend is another client of the attorney’s or significantly interferes with the attorney’s zealous representation of the client, an attorney will not likely allow a family member or third party be party to confidential communications.
An attorney will not consent to a family member interfering with the representation of the client, 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 both the family member and client sign a conflict of interest waiver.
This will likely 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 anyway.
What Happens if a Family Member Disagrees about How to Handle the Case?
The family member or friend that 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 owes a duty only to the client, not the person that pays the client’s bill. Thus, it will be the client, not the family member or friend, that will decide whether to accept a plea deal, settle the case, or proceed to trial.
What Happens to Unused Funds at the End of the Case?
At the conclusion of the case, any unused funds or unearned fees left in the client’s trust account, will be returned to the client by the attorney. Thus, if a family member or friend pays for the legal fees, at the end of the case they should ask for the money left from the client they helped.
If you believe the attorney used any unearned fees or refuses to return the trust 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?
As can be seen, assisting a friend or family member in finding legal representation is a good option for persons that otherwise cannot afford or don’t qualify for legal representation. It is important to note that it is ok for you to pay the bills, however you will not be in charge of the case and may not have much involvement in the case at all.
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 family law attorney or an experienced criminal law attorney.