Lawyers who have a relationship with opposing counsel, be it a friendship or an affair, need to evaluate whether the relationship poses a conflict that needs to be disclosed to clients, a new American Bar Association opinion said.
The opinion released Wednesday addresses a gap in model ethics rules that don’t provide guidance on conflicts that may arise for lawyers in relationships with opposing counsel that aren’t based on marriage or blood.
“Changing living patterns suggest that more people are living in households and arrangements that do not correspond to traditional categories,” the opinion said.
Lawyers in exclusive, intimate relationship “must disclose the relationship to their respective clients and ordinarily may not represent the clients in the matter, unless each client gives informed consent confirmed in writing, assuming the lawyers reasonably believe that they will be able to provide competent and diligent representation to each client,” the opinion said.
Non-exclusive, intimate relationships require lawyers to consider the “significant risk” analysis laid out in Model rule 1.7 that addresses conflicts.
“The prudent course would be to disclose to the affected clients and obtain their informed consent,” the opinion advises.
The most clear cut situation is an instance where opposing counsel are related by blood or marriage.
The comment says that such relationships may pose a “significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment” and require a client’s informed consent for the representation.
But not all personal relationships with opposing counsel require this step, the opinion said.
“Some relationships with opposing counsel are so casual that they would not affect a lawyer’s independent professional judgment,” it said.
This includes acquaintances. Lawyers who might run into opposing counsel at a professional function or are members of the same place of worship don’t need to disclose the relationship, although may choose to do so “to maintain good client relations,” the opinion said.
This guidance mirrors that given in ABA Formal Opinion 488, which covers judges’ conflicts in relationships.
An analysis of friendships between opposing counsel is more nuanced.
Opposing lawyers “who are friends are not for that reason alone prohibited from representing adverse clients,” the opinion said. “The analysis turns on the closeness of the friendship.”
Lawyers whose families vacation together, for example, should get informed consent. But old classmates who occasionally see one another for dinner may not even have to disclose the relationship to a client, the opinion said.
“Whether either consent or disclosure is required depends on the lawyer’s considered judgment as to whether Model Rule 1.7(a)(2) applies and, if so, whether the lawyer reasonably believes the lawyer can competently and diligently carry out the representation notwithstanding the conflict,” it said.
Conflicts based on personal relationships are not normally imputed to a lawyer’s firm, it notes.
The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 494, issued 10/7/20.