Whether you practice in a major metropolitan city or a rural township, legal communities tend to be small.
Over time, lawyers and other legal professionals get to know one another. Perhaps they sit on local bar committees together or their kids play on the same soccer team. Sometimes, former law school classmates end up practicing in the same communities.
For the most part, these situations are not a problem. Some might even argue that it is good for legal professionals to have strong personal and professional networks that include other legal professionals.
But what happens when you find yourself involved in a case where a personal friend serves as opposing counsel?
Does that create a conflict of interest?
Must you disclose that relationship to your client?
Fortunately, a recent ethics opinion from the American Bar Association lends some guidance to this perplexing circumstance. Here’s our breakdown of the current thinking on this topic:
Traditional conflicts of interest
We all know that lawyers must avoid traditional conflicts of interest. For example, we know from ABA Model Rule of Professional Conduct 1.7 (and its state counterparts) that, absent some fairly strict exceptions, a lawyer should not take on a matter where the lawyer’s position will be adverse to that of another client.
Yet many people overlook additional language in Rule 1.7 that prohibits a lawyer from representing a client if “there is a significant risk that the representation of one or more clients will be materially limited by…a personal interest of the lawyer.”
In the past, the latter part of that rule was seen as somewhat confusing.
What sort of “personal interests” precluded representation? Was it just business interests, or did personal relationships also fall under the purview of this rule?
Fortunately, those issues were largely clarified by Formal Opinion 494 issued by the ABA’s Standing Committee on Ethics and Professional Responsibility (hereafter, the “Ethics Committee”).
In an opinion titled “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the Ethics Committee finally gave some concrete guidance on friendship between opposing attorneys.
First, however, the court gave some guidance concerning other types of personal relationships.
Conflicts stemming from familial relationships
In considering the issue of personal relationships, the Ethics Committee first honed in on the comments to Rule 1.7. Comment 11, in particular, proved instructive. It reads:
When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be 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.
That comment was often invoked to impose restrictions on married couples opposing each other in law suits — and with good reason. Imagine learning mid-lawsuit that your attorney’s wife was the lawyer representing your bitter opponent in court.
As Formal Opinion 494 noted, however, Comment 11 didn’t go far enough. It still left open the issue of friends operating on opposite sides of a lawsuit.
According to the Ethics Committee, the Comment also ignored the fact that modern relationships might be exceptionally close without involving marriage.
Obviously, the Rule needed to go further.
In some cases, extending the rule was easy — such as in the case of intimate relationships, where the Ethics Committee ruled that:
Lawyers who cohabit in an intimate relationship should be treated similarly to married couples for conflicts purposes. The same is true for couples who are engaged to be married or in exclusive intimate relationships. These lawyers 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.
Still, however, the Committee had to do something about non-intimate friendships.
Conflicts arising from friendships
In opining on conflicts that arise from friendships, the Ethics Committee noted that friendships were “the most difficult category to navigate” because, “[o]n the one hand, an adversary may be a dear and longtime friend or someone with whom the lawyer regularly socializes. On the other hand, an adversary may be considered a ‘friend’ even though contact is occasional, brief, or superficial.”
Ultimately, the Ethics Committee turned to Formal Opinion 488, which dealt with the issue of conflicts that might arise when a judge is friends with an attorney appearing before the court.
Relying extensively on language from that opinion, the Committee decided that different types of friendships required different duties to the client, specifically:
- Friendships requiring disclosure to the client, plus the client’s written consent to the representation:
[Lawyers who] exchange gifts at holidays and special occasions; regularly socialize together; regularly communicate and coordinate activities because their children are close friends and routinely spend time at each other’s homes; vacation together with their families; share a mentor-protégé relationship developed while colleagues. . . [or] share confidences and intimate details of their lives.
- Friendships requiring disclosure but not necessarily the client’s written consent to the representation:
[L]awyers who once practiced law together [and] may periodically meet for a meal when their busy schedules permit or, if they live in different cities, try to meet when one is in the other’s hometown…Similarly, adversaries who “were law school classmates or were colleagues years before [and] may stay in touch through occasional calls or correspondence, but not regularly see one another.
Despite being a tad long-winded, the Ethics Committee’s guidance is actually quite clear.
If your opposing attorney is a close friend, disclose that to your client and obtain written consent to the representation.
If opposing counsel is more of an acquaintance, just be sure to disclose as much to your client.
And, if you want to err on the side of caution (as attorneys often do), go ahead and get your client’s written consent any time any sort of friend sits across the aisle from you.