ABA Formal Opinion 494 addresses conflicts arising from a lawyer’s personal relationship with opposing counsel

Hello everyone and welcome to this Ethics Alert, which will discuss American Bar Association Formal Opinion 494 addresses conflicts arising out of a lawyer’s personal relationship with opposing counsel under ABA Rule 1.7(a)(2).  The opinion identifies three categories of personal relationships that could affect a lawyer’s representation of a client: intimate relationships, friendships, and acquaintances. ABA Formal Ethics Opinion 494 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-494.pdf    

The formal opinion states that Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer.  A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel.

According to the formal opinion, lawyers must examine the nature of the relationship to determine if it creates a conflict under the rule and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

The formal opinion lists three categories of personal relationships that might affect a lawyer’s representation of a client: 1. intimate relationships (including cohabitation, engagement, or exclusive intimate relationship) 2. friendships, and 3. acquaintances.  

  1. Intimate relationships

The opinion notes that “changing living patterns” indicate that more people are 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.

  1. Friendships

The opinion states that friendships “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. 

According to the opinion, opposing counsel who were law school classmates or once practiced together and do not see each other regularly ordinarily do not have to obtain a client’s 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.”  “The analysis turns on the closeness of the friendship.”

  1. Acquaintances

The opinion describes acquaintances as those individuals who the lawyer sees the other lawyer at social or professional gatherings, such as a professional organization or a church, but do not have “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.”

The opinion concludes that lawyers should examine the nature of the relationship to see whether it is close enough to require disclosure and client informed consent.  Further, “(d)isclosure may even be advisable to maintain good client relations.”

Bottom line:  This ABA Formal Opinion was published to assist lawyers in evaluating personal relationships with opposing counsel and determining whether the relationship may or does result in a conflict of interest.  If it does, the lawyer is required to disclose the relationship to the client and obtain informed consent in writing. 

            Stay safe and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Leave a comment

Filed under ABA Formal Opinion 494 conflicts arising from personal relationships, ABA Formal Opinion 494- conflicts arising from lawyer personal relationships, ABA formal opinions, ABA Model Rules, Attorney Ethics, Conflicts of Interest - personal relationships, Conflicts of interest personal relationships, joe corsmeier, Joseph Corsmeier, Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s