September 23, 2008
Burden Of Proof
A Louisiana hearing committee has recommended that all disciplinary charges be dismissed in a matter where the attorney had been charged with engaging in a prohibited business transaction with a client. The fighting issue was whether disciplinary counsel had proved by clear and convincing evidence that there was an attorney-client relationship with respect to the particular transaction (investments in billiard hall franchises). The committee rejected the charges, as there was no written retainer, no fee and the attorney "never represented that he [sic] providing legal services to [the putative client]."
The attorney and the joint venturer were childhood friends. The ate lunch together regularly and were "frequent golfing partners at Bayou Desiard Country Club." The friend had significant business experience and had founded Podnuh's, a 12 store barbeque restaurant business. The accused had been retained by the friend on an intermittent basis since 1987, often for no fee. The business investment opportunity was first presented when the friend executed the will that the accused had prepared gratis. The accused had drafted the agreement that memorialized the deal. The committee also concluded that the deal was fair and reasonable.
Given the drafting of the agreement by the accused, this one could have gone the other way. (Mike Frisch)
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I wonder how that one got started. It's worth remembering that where a lawyer represents a good friend or a family member there can be a significant risk of misunderstanding and disappointment, and of harm to the relationship. Best to avoid such situations. Make a referral. At a bare minimum, resist the reflexive impluse to help out by providing legal services. Think things through. Then make a referral.
Posted by: W.R. Chambers | Sep 23, 2008 11:45:01 AM