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Taking Off the Hat for a Fine Wine and Caveats

Posted By Administration, Monday, December 3, 2018


Howard Marsilio, N.C. General Assembly, Legislative Analysis Division

                Writing a holiday blog post is becoming a holiday tradition for me at this point. Given that the holiday season will be here shortly, parties with friends and family will be in full force. Some of those friends and family may take the opportunity to "casually" bring up their legal issues that "their friends" are experiencing. Remember that casual conversation can implicate the Rules of Professional Conduct depending on the circumstances. Ms. Rebecca F. Hölljes discussed this topic in greater detail in her post Friends, Family, and Casual (Legal) Conversation from May, 2017.

                The term "client" is defined in the North Carolina Rules of Professional Conduct, Rule 1.15-1 as "a person, firm, or other entity for whom a lawyer performs, or is engaged to perform, any legal services." It defines "legal services" as "services (other than professional fiduciary services) rendered by a lawyer in a client-lawyer relationship".

                In a casual party conversation, you are probably not intending to be engaged to perform legal services or render legal advice, nor are you intending to form a "client-lawyer relationship" around the fireplace of your friend's house. But does the person you are speaking with know that, especially when you are offering friendly bits of information about their issues just to be friendly or helpful? Maybe not. Additionally, depending on what you learn during the conversation, confidentiality or conflict issues are potentially in play. Rule 1.18, Duties to Prospective Clients, in my opinion is intending to apply to more formal conversations about forming a client/lawyer relationship, but the comments provide good guidance and will help calibrate your THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE - O – METER.

Unfortunately, from the non-attorney point of view, a lawyer is always a lawyer – and very rarely can we take off the hat. It would be nice to carry around a "NOT IN SERVICE" marquee after business hours, but I find that it's a bit too heavy. I like to think that the Rules of Professional Conduct are not meant to prevent lawyers from interacting with society in conversations about the law without reciting a laundry list of caveats, but of course every situation is different, and unfortunately the attorney may need to deal with the consequences if a line is crossed. With that being said, I will leave you with the gift of caveats: This blog post is not to be construed as legal advice; For ethics questions, please consult the North Carolina Rules of Professional Conduct, Ethics Opinions, and/or consult with the North Carolina State Bar; I am certainly not an expert, nor competent in the art of manners and party etiquette - I am not from the South and that probably does not help. Happy Holidays!!!

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