Friendship and the Law: A Guest Post

Ethan Leib is an associate professor of law at the University of California’s Hastings College of the Law; an affiliated faculty member at the Kadish Center for Morality, Law & Public Affairs at U.C.-Berkeley’s Boalt Hall; and author of Deliberative Democracy In America. In his paper “Friends as Fiduciaries” and on his blog, Leib asks a provocative question: should the law recognize friendship as it does other relationships? He has agreed to write some guest posts here on the subject; this is the first of three.

The Times has reported that the legal academy is out of touch with the legal profession. Courts don’t cite us law professors and we are hopelessly wrapped up in debates with ourselves that don’t matter to real lawyers.

This would seem to be especially true about my pet project these days: trying to understand the relationship between friendship and the law. I’ve been writing article after article trying to understand how friendship and law interact, how the law regulates our friendships on the sly, and whether the law should be at least trying to promote or protect our friendships when it finds itself in the middle of them. I even have some popular press paying attention: I did an article for Policy Review and helped a reporter at The Boston Globe publicize the work.

But it turns out, even if courts are ignoring this academic frolic for now, some legislators may start paying attention. The California Law Revision Commission has taken notice of my work on friendship and the law in a recent report — and has urged the California Legislature to protect friendships.

Here’s how:

In a recent California Supreme Court case (Bernard vs. Foley), the court decided that friends who care for their elderly or infirm counterparts cannot take gifts or bequests without some special proof that they didn’t unduly influence their friends into making the donation. Perversely, if you take care of your friends when they most need you, you may be disqualifying yourself from accepting their largess.

For a while, lower courts found a way around this awkward burden in the case of “pre-existing” friendships, creating a special exemption from the “custodial care provisions” that the Supreme Court recently interpreted. But the Supreme Court simply thought the pre-existing friendship exemption carved by the lower courts could not be justified by the statutory language.

In my work on friendship and the law, I took the modest position that the lower courts had the right instinct — and that it would be a good thing if friends didn’t have to worry about disqualifying themselves from accepting gifts and bequests merely by trying to care for their infirm counterpart. It is good to see that the Commission, after having read my case, is supportive of the Legislature changing the rules.

There’s a lot to say about why we don’t want the law getting too involved in our friendships. But this is a simple way to help protect friends and encourage the care they can provide for one another — and more cheaply than Medicare, to boot.

science minded

Dear Ethan;

I think we are on the same wave length in the sense of a clear distinction that needs to be made from the start between scientific knowledge and the use to which it is put.

Dear Ben;

I foresee a problem with the rewriting of the law from the get go and perhaps you do to. Should the law treat blood relations differently. Example- being a step mom, I have found that I am treated differently and it seems almost mutual. Now in ancient china, where there was no clear grasp of individual differences, just the reference to common ancestry was enough to move mountains i.e., to get a person to fight in a war where they might lose their life, but gain a place in another world as an ancestor (and continued member of the same ancestral community). The only similar case like this that I know of is with children. I tell my students this story. It is a true one told to me by one of my daughter's classmates mother. Her son wanted a dog. Begged and Begged for one and finally was given a dog as a gift. The young dog crapped all over the place and chewed the furniture. The mother fearing further and ongoing messes threatened to take the dog away if the dog did not start to behave. The boy took the threat seriously. What did he do. he took charge-"That's my brother." End of story in this instance- 5 years or so later, I learned that they still had the dog. some of my students tell similar stories- only in their cases, their parents got rid of the animal. So here's one for the books. Who owns the dog? Could the boy have sued to keep the dog if his parents decided to get rid of it since it technically belonged to him or as a child, did he have no rights in the matter? Does it matter that he referred to the dog as my brother (even if it was adopted?) to be continued....


John Squire

Does the "undue influence" presumption flow to the standard of conduct/care for negligence purposes?

It seems that a friend would ordinarily get a lowered standard of care commensurate with gratuitous actors, but this statute would seem to suggest that an elevated standard is appropriate. Yuck.


When a companian/custodian/friend receives a bequest, family always can argue undue influence. The only issue you highlight is whether courts will presume the bequest valid or invalid - who has the burden of proof. Problem is, people often don't know the rules. That's why people should consult a lawyer and make sure that their wishes will withstand challenge.


Ethan- If those being helped are especially vulnerable to the undue influence of their custodial caregivers,the disallowance of gifts or bequests absent proof by the caregiver of a lack of undue influence seems to be a reasonable protective strategy.You argue that prior friendship should obviate such proof,implying that friends don't screw each other.Unfortunately, experience suggests otherwise-we would say in retrospect that obviously they weren't really friends,but the Supreme Courts instinct to uphold the law's letter does have the salutary effect of focusing on the facts of the transaction without abstract arguments about prior subjective status. -Myron


With all due respect to my former professor, didn't we due away with common law marriage because of evidentiary concerns? Wouldn't the recognition of friendships discourage contracting, encourage fraud, and open the floodgates of litigation?

Mississippi Prosecutor

The next step would be for a legislature to enact law that would "enhance" a penalty for someone who takes advantage of a friend. In an effort to get tough on crime law would state that if you steal from someone you know, you must receive a mandatory minimum sentence. Judges would further be stripped of their ability to make just sentences based on all of the facts. Further, such an enhancement would put a victim in a terrible position; i.e. lose the friendship forever or chose to drop charges entirely. As far as criminal law is concerned, a court should take the relationship of the victim and the defendant in account in passing sentence.

Ethan Leib

Evidentiary concerns are real but not insuperable (and common law marriage really is another story altogether -- where evidence is actually even easier to come by). Relationships that are often hard to define serve as the bases for legal liabilities and privileges throughout the law. Try figuring out the test for when someone is an employee of someone else: you'll find a multi-part test that produces only a few easy answers at the margins. Think about the tests for mental illness in the law. Tough stuff. But we don't decide that there are no employers or mentally ill people just because of evidentiary difficulties. In the academic articles to which I link, I develop something like a test, if you are interested.

You'd have to say a lot more about the "fraud" you worry about, since part of the entire point of the enterprise is to avoid people pretending they are your friends only to screw you later. That happens a lot -- with elderly people and others. If we don't police false friends, friendship will be used to abuse people.

Far from discouraging contracting, actually, most people worry about the opposite: that this will lead to people defining their relationships in legal documents to avoid misunderstandings. That is a real danger, I think, though I'm far from sure that being honest with each other about how close we are is a bad thing.

"Floodgates" arguments don't move me. They are always used to prevent any progress or reform -- in the intimate context and the mass tort context. The real issue is how much you care about the wrong being repaired. In any case, the case reporters are already full with friends and ex-friends suing one another. And I'm sure the unreported cases in small claims court would reveal thousands more. The point is that this is already happening below the radar because of our squeamishness. It's time to confront reality.


Ethan Leib

Mississippi Prosecutor:

I had your instinct in my first article on the subject. Here's what I wrote:

"One also might imagine that an abuse of a friendship might figure into a criminal sentence by

subjecting a defendant to an enhancement for an “abuse of a position of trust.” See U.S.

SENTENCING GUIDELINES MANUAL § 3B1.3 (1992). For discussion of this possibility, compare

United States v. Pardo, 25 F.3d 1187, 1190–93 (3d Cir. 1994) (finding that no abuse of a position of trust enhancement was appropriate when a defendant took advantage of his friend in perpetrating his

fraud), with United States v. Zamarripa, 905 F.2d 337, 340 (10th Cir. 1990) (finding an abuse of a

position of trust when a friend sexually abused his friend’s daughter). The central idea is that an enhancement may be appropriate because those who take advantage of friendships may be more culpable than those who do not. See Pardo, 25 F.3d at 1191 (citing United States v. Craddock, 993 F.2d 338, 340 (3d Cir. 1993)).



Why is the burden of proof on the caregiver to prove she didn't unduly influence the donation? So undue influence is assumed in the case of a gift like this?! There must be something I'm missing, because this doesn't sound like a reasonable position for the law to take.

Ethan Leib

Science Minded:

You are just the open-minded and thoughtful audience for this project. These are very hard questions. The reality is that the law is stuck dealing with these problems all the time -- and only pretends not to with subversion, subterfuge, and plasticity. My hope is to help move this conversation along so that the law, over time, might develop the tools to deal with these complex problems. For a long time, much of our private law has got along with pretending we're all strangers. That just isn't how the business world works -- and it is high time we developed a new paradigm. The tricky part is that it is really hard to figure out what to do.

Ethan Leib

Fiduciary law is organized around the principle that fiduciaries must not act in their own self-interest and they must remain fully loyal to their beneficiaries. Part of the rationale stems from the beneficiary's presumed vulnerability to the fiduciary -- and the beneficiary's inability to monitor opportunism. Accordingly, California passed a "custodial caregiver" statute to protect against the presumed vulnerability of the infirm, who might be unduly influenced into making gifts by custodial caregivers. Just as a decedent's lawyer would have a special burden to take under a will that s/he drafted, so does California law remain suspicious of caregivers who find themselves as recipient's of gifts. As I suggest, this is at least one way that we ought not extend the fiduciary principle to friends, who should be able to give gifts to one another freely.


The legal position arises from financial abuse perpetrated on the elderly (or others requiring care) by caregivers. This is unfortunately a very common occurance, though normally committed by a family member and certainly not always with malice. Its a complicated matter of interpersonal relationships, the impact of age and age-related health issues, cognitive imparements, money and the perception of "undue influnce" on the disposition of estates.

The Friend issue becomes especially thorny if the elder or ill person has family and the friend receives gifts or bequests that seem out of place to the family.


There are too many outdated laws that try too hard to protect the rights of blood relatives. This is not just in financial matters but in child custody cases as well. Why should a blood relative of mine have more rights to my stuff or my children than my best friend or my adult foster child? Adoption law addressed this well by transfering to an adoptee *nearly* all of the same rights as a biological child, but this was only done fairly recently. With so many homes composed of step-parents, half-siblings, gay life-partners, and numerous other modern family concoctions, its past time for a re-writing of these laws.


So many of these situations depend on what the caregiver does to affect the family relationship. The child who keeps in touch faithfully, who finds access denied is far more likely to think the CG is a fraud and thief than one who welcomes family and receives a token.

CG working for pay is appropriate, while working for an inheritance usually is not appropriate.

Been involved in cases where CG is the final friend of the elderly person. Family sometimes is easily as greedy as the "late in life friend" that may be sincere or abusive. Time and efforts count for something.

Tough getting old.


It is partly about friendship and other interpersonal relations too.

The "presumption" of "undue influence" may right. However it can be defeated. Employers, employees, students, teachers, parents, offspring--relations of any sort may morph into sincere friendships of virtue or pleasure. One naturally enjoys benefiting friends.

Strictly speaking un-dutiful influence (eg beyond the scope of a professional) need not be wrongful or harmful.


"False friends." VS what? True friend? The etymology of 'true' (as in logic) derives from 'true' as in 'true friend/lover': means faithful, trustworthy, caring. But friends are obviously more than (legal)trustees.

As mentioned 'friend' covers at least the three relations/mind-sets Aristotle discussed. 'Friendships' include at least the nine varieties.

And 'friendly' covers wider territory yet--like/as if a friend.

Is "true friend", a friend in need? "False friend"-a fair weather friend? Perhaps these old saws really distinguish friendships of utility (care b/c it pays)from friendships of pleasure and virtue (intrinsic care).

But even intrinsic/sincere care has its limits--"unconditional love" is myth or hyperbole. And extrinsic/insincere--in it for the payoff--care is still care!--and need not be fraudulent, let alone "out to screw you later." Even true (= sincere) friends can screw you--people are complex, "contradictory"--hurt most the ones we love most--etc.

But if 'true'= beneficial and 'false'=harmful sincerity is beside the point.

Professionals of all sorts are in a conflict--duty to benefit the client vs max billings. The ethical ones reach and even raise the bar--they psyche themselves up to care more about the client than the billings. Applies to teachers, physicians etc. --even lawyers! And a "friendly" professional can morph into a (real) friend--do they forgo fees?


science minded

What does it mean that the law shold recognize friendship? I have thought about this question alot- having been involved in a legal case of this sort. My dad had a childhood friend with whom he had become engaged in several business ventures. They were friends (going back 80 years) and neither one felt the need to sign contracts or agreements between themselves. Then this friend of my dad's died. My dad, from time to time, would ask his' daughter about her intentions. He had asked that question to his friend when he was alive. My dad was ignored. But he never pursued the matter further. The friend's daughter (whom I had grown up believing to be my friend as well)wanted things her way (or at least it seemed so). In the end, when my dad died and my mother was ignored as well, my mother decided to sue. I went along with it because I truly believed that it was my mom's right and my dad's to get out of the business when they wanted to. They went in freely with the idea of making an investment and hence of profiting and should have been let out in the same way. Even in friendship, there needs to be some freedom along the boundary line of the rights of the individual. My intention was not to hurt my friend. It was merely that I believed that every individual in a relationship has rights and deserves a certain level of respect (including my supposed friend and my mother). In the end, my mom did get what she wanted. I didn't. I seem to have lost my friend. So what could the law do to protect the situation or me? Frankly, I don't know. My first thought was that what I had learned from this is the principle of not mixing business and pleasure. But then I am reminded of how successful businesses operate. Successful ones seem to encourage and foster friendships (lasting relationships) among employees and within communities. I am reminded here of a large motor company that forgot about the community that they serve (Flynt, Mich.) Richard Sennett made this point in "Corrosion of Character."


Ethan Leib


Of course you are right. But the lower courts using the "pre-existing friendship" exemption (operative word here is "pre-existing") made a fact sensitive inquiry into the relationship to make sure it was a "real" friendship -- and pre-existed the care-giving. Indeed, the swing vote on the Supreme Court -- that of Judge George -- was careful to highlight that in the case at hand, he was underwhelmed with the evidence of the friendship. In short, even when courts want to forget about friendship, they have a hard time doing so. Better to be honest about what we're doing.


I'm not sure this post is really about Friendship and the Law because the issue was whether a class of caregivers would be defined as "custodial caregivers" and have any bequest or gift presumptively invalidated. The Court recommended the Legislature look at the problem and the Chief Justice even recommended, that the law "could be amended to provide that a change in

testamentary disposition made by a dependent adult designating

the care custodian as a beneficiary, within one year following the

commencement of a new nonprofessional caregiving relationship

or within one year preceding the death of the dependent adult, will

be subject to the presumption of undue influence."

In other words, I see this not as being about friendship but about the lines drawn to protect the infirm and their families from evil.

Michael Kubara

Aristotle distinguished three interpersonal relations called "friendship" (philia):1 friendship of virtue; 2...of pleasure/charm; 3...of utility.

Common to each are

i)desire to be in friend's company, engage on some cooperative activity (competition presumes cooperation to play the game/ceremony/ritual etc.); thus limits on number of friends--it takes time

ii) care/concern for friend's welfare;

iii)none are "transitive"--if A is friend of B and B of C, A and C need not be friends.

iv) none are necessarily "requited"

v)all may be compartmentalized--sports friend's, philosophy friends, poker friends etc. Today we recognize "sex friends". Law gets involved re "palimony"

vi) all imply relation is a good to the friend--losing a friend is a loss of welfare.

So despite wishing well for friends, reluctance to wish so much that you are not in same league.

1. F of V: intrinsic care b/c admiration of virtues/skills/talents. These presume a rough equality--skiing/tennis/golf friends must be in the same league--or relation shifts to student/teacher.

2. F of pleasure/charm--intrinsic care b/c friend's company feels good--witty, comforting, sexy etc.--so many variations.

3. F of utility--extrinsic care b/c believed friend will advance one's welfare/interests. Golf/sex etc. with boss; change jobs never see him again.

Display of friendship is insincere--lacks intrinsic care/concern

Re only relations with some form of friendship for each party A and B yields nine possible combos


1 V V mutual admiration

2 V P eg teacher-beautiful student

3 V U eg skilled employee-employer

4 P V see 2

5 P P adolescent sex--aesthetically based

6 P U investment sex--ala Jane Austin

7 U V see 3

8 U P see

9 U U mutually useful; colleagues,teammates

As mentioned, even 1 and 2 imply some utility--benefit to the friend. Gift giving/receiving does not imply mere friendship of utility. But even "insincere" "friendships" are not thereby evil. Johns pay for insincere sex. They (men) once argued that nursing should be unpaid b/c payment undermines sincere patient care.

Sincerity isn't everything. Often faking it is a virtue a gift. Applies to elder care too.