When are personal relationships with opposing counsel conflicts? New ABA ethics opinion weighs in
Lawyers’ personal relationships with opposing counsels may create a conflict under the ABA Model Rules of Professional Conduct, according to a new ethics opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility.
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 counsels. In such a case, the attorneys cannot handle the client’s case unless each client has given informed consent confirmed in writing.
Formal Opinion 494, released Wednesday, explains that other personal relationships—aside from marriage—can create a conflict for lawyers. The opinion analyzes three categories of relationships:
- 1. Intimate relationships
- 2. Friendships
- 3. Acquaintances
An ABA press release on the opinion is here.
Lawyers in intimate relationships with other opposing counsels or lawyers who are close friends with opposing counsels must disclose such relationships to their clients and often must obtain the informed consent of clients confirmed in writing, or they cannot represent the client, according to the opinion.
The opinion notes that “changing living patterns” suggest that 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,” according to the opinion. This includes those who are married, engaged to be married, or in “exclusive intimate relationships.” In these instances, lawyers must disclose the relationship to their respective clients and may not represent the clients unless each has given informed consent confirmed in writing.
As for friendships, the opinion says those “may be the most difficult category to navigate.” Close friendships with opposing counsels should be disclosed to clients, according to the opinion. These include friendships in which the lawyers exchange gifts at holidays, spend time routinely at each other’s home, or vacation together with their families.
However, opposing counsels who were once law school classmates or who 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.
“In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients,” according to the opinion. “The analysis turns on the closeness of the friendship.”
The third category discussed are acquaintances. The opinion describes such relationships as those in which individuals see each other at gatherings, such as a professional organization or a church, but don’t feel “a close personal bond.”
“Lawyers who are acquaintances of opposing counsel need not disclose the relationship to clients, although the lawyer may choose to do so,” according to the opinion.
The opinion concludes by explaining that lawyers should examine the nature of the relationship to see whether it is one close enough to require disclosure and client consent, ending with a practice tip: “Disclosure may even be advisable to maintain good client relations.”
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