Ethics and professionalism: can you give me some friendly advice...?

• Author: Pope, Daniel J.

This department is conducted by IADC member Daniel J. Pope of Bell, Boyd & Lloyd, Chicago, who is a member of the Defense Counset Journal Editorial Board. Readers are urged to send their comments, experiences or articles to him at Suite 3200, Three First National Plaza, Chicago, IL 60602, or to Defense Counsel Journal.

Being sorry doesn't get it done, Dude.

--John Wayne in "Rio Bravo"

THE situation is so commonplace that we hardly notice it. A neighbor, a friend, a relative or a fellow partygoer asks for some "friendly" (read "free" legal advice over the fence, lunch, at a cocktail party or along the jogging trail. All too often, we respond with a helpful answer.

BEWARE! By giving that legal advice, have you created an attorney-client relationship? Can you be forced to testify about what was said if the conversation turns to some on-going or future illegal conduct? Worse, will your new client" file a complaint with your local disciplinary agency seeking your disbarment if you do testify and sue you for money damages in a malpractice action to boot?

The attorney-client relationship can protect confidential information that the client reveals to his attorney. But, as Margaret Joffe and Eddie Rice discussed in last July's installment of this department,l the complexities of large firm practice and the increasing numbers of lateral transfers have made protecting confidential information much more complicated than it was in the past. However, the concept itself depends on a slippery definition from the outset. What creates an attorney-client relationship? How can one tell when an attorney-client relationship has begun? The very definition of the relationship is hazy, and it becomes hazier still when the original relationship is one of friendship or family.

Just among friends?

All too often we are placed in jeopardy of violating the sanctity of the attorney-client relationship by the seemingly innocuous questions. of those around us. When that neighbor, friend or relative asks for "friendly" legal advice in some non-business setting, that person clearly has not hired you as his or her attorney and certainly does not anticipate receiving your bill. Yet later, this same person may want to claim the protections created by the attorney-client relationship for any information conveyed to you during the conversation. If you learn anything in confidentiality, will you have to protect it under the attorney-client privilege?

Because the various states have adopted different variations of the American Bar Association Model Rules of Professional Conduct or of the former Model Code of Professional Responsibility, the answers to these questions will vary. Indeed, many states have abolished the common law attorney-client privilege by statute and adhere only to the rules as they have been enacted by legislation. Others may have both the common law...