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.
- 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.
- 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.”
- 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.
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Joseph A. Corsmeier, Esquire
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