How close can you be to opposing counsel without it being a conflict of interest?
Under the ABA Model Rules of Professional Conduct, attorneys can’t represent clients if they have a marital or familial relationship with opposing counsel unless they get informed consent in writing from their client. A new ethics opinion takes it further, warning that lawyers need to take a hard look at all personal and casual relationships with opposing counsel that might conflict them out.
Formal Opinion 494 analyzes three categories of relationships: intimate relationships, friendships and acquaintances. According to the ABA’s Standing Committee on Ethics and Professional Responsibility, some relationships with opposing counsel are “casual” enough that they do not present a conflicts issue, but others “might obligate the lawyer” to disclose such relationships to clients.
ABA Model Rule 1.7(a)(2) prohibits lawyers from representing a client if there is a significant risk that the lawyer’s representation will be materially limited by a personal interest of the lawyer. Comment 11 to Model Rule 1.7 specifically identifies such a personal interest as when a lawyer is “closely related by blood or marriage” to opposing counsel. In such a case, the attorney cannot handle the client’s case unless each client has given informed consent confirmed in writing.
The opinion also notes that sometimes a lawyer may need to disclose a close relationship under another ethics rule—Rule 1.4, the lawyer’s duty of communication. Ethics expert Susan Saab Fortney, who directs the Program for the Advancement of Legal Ethics at Texas A&M University School of Law, says including the duty of communication under Rule 1.4 as a reason for possible disclosure of relationships to clients makes sense. “This points to the value of a lawyer considering the client’s perception of the significance of the lawyer’s relationship with opposing counsel,” she explains.
The opinion notes that “changing living patterns” suggest more people may be living in the same household with “arrangements that do not correspond to traditional categories.”
“Lawyers who cohabit in an intimate relationship should be treated similarly to married couples for conflicts purposes,” the opinion reads. This includes those who are married, engaged to be married or in “exclusive intimate relationships.” In those cases, lawyers must disclose the relationship to their respective clients and may not represent such clients unless each client gives informed consent confirmed in writing.
The opinion explains that a number of states “agree that intimate and cohabitating relationships should be treated like spousal ones,” citing ethics rulings from Arizona, Michigan and North Carolina. It adds that failure to disclose the relationship may result in “discipline, disqualification or other significant consequences.” For example, in the 1985 California case People v. Jackson, an appellate court reversed a conviction where defense counsel failed to inform the defendant that he dated the prosecutor.
A more difficult question arises for those lawyers who are in a type of intimate relationship “but are not exclusive, engaged to be married or cohabiting.” Lawyers in these types of nonexclusive intimate relationships “must carefully consider whether the relationship creates a significant risk that the representation of either client will be materially limited by the lawyers’ personal relationships.” The opinion adds that the “prudent course” is to disclose such relationships and obtain clients’ informed consent.
The opinion points out a possible difference between exclusive intimate relationships where the opposing lawyers are living together and a situation where the opposing lawyers are dating but do not reside together. However, it does not address personal relationships involving previous marriages or “cohabitations, engagements and exclusive dating relationships that have ended.”
“I appreciate the committee’s recognition … of modern intimate relationships,” says Ellen Murphy, who teaches professional responsibility at Wake Forest Law School. “I also appreciate the committee’s admonition that a range of relationships, not just those in which the lawyer and opposing counsel are ‘closely related by blood or marriage,’ can give rise to conflicts of interest.”
According to the opinion, friendships “may be the most difficult category to navigate.” Because there are many different types of friendships, those relationships should be examined carefully.
But the opinion notes that lawyers should affirmatively disclose close friendships with opposing counsel to their clients. These include friendships where the lawyers exchange holiday gifts, spend time at each other’s homes routinely or vacation together with their families. Ordinarily, such close friendships with opposing counsel should not only be disclosed to clients, but lawyers should also obtain clients’ informed consent. However, the rule says it’s a judgment call. The practitioners must decide whether Model Rule 1.7(a)(2) applies and if they can competently and diligently carry out the representation, notwithstanding a potential conflict.
“In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients,” the opinion reads. “The analysis turns on the closeness of the friendship.”
For example, opposing counsel who were law school classmates or once practiced together but don’t see each other regularly ordinarily do not have to obtain clients’ informed consent and may not have to even disclose the relationship to clients.
Murphy notes that “the opinion’s examples of friendships giving rise to conflicts is quite broad.” She says the opinion suggests that lawyers exchanging holiday gifts is “indicative of friendships that require disclosure and, most likely, consent,” but also says “it’s easy to imagine lawyers who could reasonably believe such exchange would not materially limit a representation.”
The third category discussed is acquaintances, which the opinion defines as “relationships that do not carry the familiarity, affinity or attachment of friendships.” The opinion describes such relationships as those where individuals see each other at gatherings, such as for a professional organization or church, but don’t feel “a close personal bond.” Acquaintances may be lawyers who meet at bar association meetings, present continuing legal education programs together or serve on committees or boards together.
“Lawyers who are acquaintances of opposing counsel need not disclose the relationship to clients, although the lawyer may choose to do so,” the opinion reads.
The opinion concludes by explaining that lawyers should examine the nature of the relationship to see if it is one close enough to require disclosure and client consent, but it notes that “disclosure may even be advisable to maintain good client relations.”
Fortney agrees with the opinion’s conclusion that disclosure is often the best route. “Rather than using the conflicts analysis standard considering the conduct of a reasonably prudent and competent lawyer, for communication and risk management purposes, I urge lawyers to disclose information that a ‘reasonable client’ would consider to be significant in retaining counsel,” she explains. “Beyond ethics rules, such an approach would be consistent with the lawyer-fiduciary’s duty to loyalty and candor.”
This story was originally published in the Feb/March 2021 issue of the ABA Journal under the headline: “How Close Are You to Opposing Counsel? Ethics opinion examines personal relationships and conflict”
David L. Hudson Jr. teaches at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.