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Friends With (Legal) Benefits

As lawyers, we are always getting questions from friends about their legal situation, and we try to help out as best we can.

We know lawyers who won't do that and caution against it. Giving free, informal advice can put you in some real malpractice jeopardy, they warn, and you're better off not giving it, and the questioner is better off hiring a lawyer. 

Worse, they say, since you are not your friend's actual lawyer, the conversation won't be protected by the attorney-client privilege.

And a recent case decided by the South Dakota Supreme Court is making conversations like these especially tricky.

Mary Ellen Nylen was beset on all sides by three lawsuits at once, including one by her own children. As a sounding board, she turned to an old friend who had once been her divorce lawyer. 

A few months earlier, the lawyer had told her she could not represent her as a lawyer, because there was a conflict of interest with Nylen's husband. But  Nylen still sent her friend some documents that were conversations between Nylen and her lawyers.

Don't forget here - all conversations between you and your lawyer are privileged, but the attorney-client privilege ends once you share those conversations with someone outside that relationship. So did Nylen break the seal when she sent her friend those privileged documents?

Their lawyer for her children thought so, and moved to get discovery on those conversations. 

And last year, in Nylen v. Nylenthe South Dakota Supreme Court looked closely at the language governing attorney-client privilege. The South Dakota law reads much like the law in a number of states, but maybe not in yours:

"A 'client' is a person...who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from [her]."

Before Nylen sent the documents, the court pointed out, Nylen's friend had already told her she could not represent her nor give her legal advice. So, the court ruled, Nylen could not have been seeking legal advice, since she knew she would not get it. So the court required her to turn the privileged documents over to the other side.

It can be helpful to have a friend who is a lawyer. But if a lawsuit is in sight or underway, those conversations can be tricky to navigate, and both of you should consider very carefully what could happen down the road.

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