can lawyer represent family member the lawyer, in the exercise of his profession, may sometimes be called upon to advise or defend relatives, in particular his family. If the situation raises questions, it is because it calls for reflection on the balance of this situation with regard to respect for the ethical principles of the lawyer.
Curious question to know if a lawyer can defend a member of his family. All the more so since it very often (too often) happens that the lawyer is approached by many members of his family who consider that the “family lawyer” is a well of knowledge of law, capable of advising both on the estate of the great-grandfather and on the demarcation of Uncle Jeannot, the co-ownership dispute of Aunt Huguette or the administrative or electoral law problems of a cousin who became mayor of his village of 50 inhabitants .
When the defense in view of justice comes up against family affection, is it possible to ethically and deontologically fulfill one’s obligations as a lawyer?
Loysel wrote that the legal profession “desires its whole man”
; but is it possible that the independence of the lawyer, “consubstantial virtue of the profession”
is “entirely” if the latter has to defend a member of his family? Is this independence not, moreover, beyond the ethical considerations of Articles 1.3 and 4.1 of the National Rules of Procedure.
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the quality of the lawyer which allows him to ensure the completeness and establishment structured in his person, in such a way that it has been said of the lawyer that it is a “profession whose virtue makes all the nobility and in which men are esteemed, not because of what we make their father, but by what they are themselves”.
The defense of a member of his family, which goes back to Greek antiquity with the synegoras or to the Romans with the patronii , has always been accepted, whether this defense is exercised by a lawyer or another person. Should we see the origin of our article 762 of the Code of Civil Procedure?
The traditional literature of the bar stresses that the lawyer can defend his family, but on condition that the principle of independence is not undermined and, consequently, that the principle of disinterestedness is respected (since it is still a matter of ‘a deontological foundation of the profession of lawyer…) and that the lawyer derives no interest from the case which would have been entrusted to him.
Therefore, making a fee agreement with a member of his family could run counter to the principle of delicacy . And, in the absence of an agreement, demanding from a member of his family fees fixed according to usage would contravene the principle of disinterestednes.
The defense of a member of his family is not prohibited, and certain situations even place upon the lawyer a real duty of service with regard to his family. But this cannot be at the expense of the principle of independence. The lawyer cannot debase this independence for the benefit of a biased defence, not by a subjectivity which it is impossible to divest in the context of the defense of a client, but by the sentimental blindness due to family proximity. or unjustly coveted interests.
Between complete dedication and the need for independence, the balance of the service is difficult to find, something that is rightly pointed out by the Code of Ethics for lawyers of the Paris Bar.
If, within the framework of his professional practice, the lawyer must have a family (and a father), it is better to avoid any moral and ethical difficulty, that he considers that it is the Bar Association (and his President).
To remember: It is possible, for a lawyer, to defend a member of his family, but on the condition that prevails, within the framework of this defense, the ethical principle of independence, and, subsequently, that of disinterestedness. These situations call on the lawyer to use the virtue of prudence in order to comply with the ethical and moral obligations of his Order.
by Pierre-Louis Boyer, HDR Lecturer – Le Mans University Thémis-UM EA4333 and IODE-Rennes 1 UMR CNRS6262 , on 03-06-2021
RIN, art. 1.3: “[…] The lawyer performs his duties with dignity, conscience, independence, probity and humanity, respecting the terms of his oath. […] He demonstrates, with regard to his clients, competence, dedication, diligence and prudence” ( Lexbase No.: L4063IP8 ); art. 4. 1: “[…] Unless there is a written agreement between the parties, he refrains from taking care of the affairs of all the clients concerned when a conflict of interest arises, when professional secrecy risks being violated or when his independence may no longer be complete.
Can lawyer represent family member
Can a lawyer advise friends, family members and their spouse?Lawyers are allowed to advise friends, family members, spouses and other people with whom they are acquainted. A lawyer is not in a conflict of interest simply because the lawyer is representing a family member or a friend.
2.M. Braunschweig, Lawyer. The guide , Paris, Lamy, 2017.
3.A. Loysel, Pasquier or Dialogue of the lawyers of the parliament of Paris , Paris, Videcoq, 1844, p. 101.
4. E Cresson, Uses and rules of the legal profession , op. cit ., p. 277.
5.Quote from René Pichot de la Graverie, quoted in F. Pitou, La robe et la plume , Rennes, PUR, 2003, p. 172.
6.Order of the Disciplinary Council of the Paris Bar of May 21, 1833, quoted in E. Cresson, Uses and rules of the legal profession , t. I, Paris, Larose, p. 281.
7. H. Ader, A. Damien et alii , Rules… , op. cit ., n° 333 s..
8.Cass. civil. 2, January 4, 2009, No. 08-14.294, FD ( Lexbase No.: A6311EH9 ).
9.Cass. civil. 2, January 4, 2009, No. 08-14.294, FD ( Lexbase No.: A6311EH9 ).
10. Decree no. 2005-790 of July 12, 2005 relating to the rules of ethics of the legal profession, art.
11. The lawyer must dispense with intervening when his independence risks no longer being complete, which will generally be the case in the cases referred to above [member of his family, very close friend, companion]”
Reading your article helped me a lot, but I still had some doubts at the time, could I ask you for advice? Thanks.
Yes sure plz
Reading your article helped me a lot and I agree with you. But I still have some doubts, can you clarify for me? I’ll keep an eye out for your answers.
Yes sure plz