February 02, 2021

Recent Guidance on Relationships with Other Lawyers and Personal Interest Conflicts

Keith Fisher

A recent ABA ethics opinion addresses conflicts arising out of a lawyer’s personal relationship with opposing counsel under Rule 1.7(a)(2) of the Model Rules of Professional Conduct.  That Rule 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 either by a lawyer’s responsibilities to others (another client, a former client, a third person) or by a personal interest of the lawyer.  

Formal Opinion 494 (“Op. 494”) considers the latter in the context of personal relationships with counsel representing different clients in the same or related matters.  The point of departure for this examination is Comment [11] to the rule, which observes that when opposing counsel are 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.” 

The opinion expressly relies upon—and derives these categories from—an opinion issued a year earlier, Formal Opinion 488, dealing with judicial disqualification or recusal based on a judge’s social or close personal relationships with lawyers or parties.  This weakens Op. 494, as analogy to judicial ethics is not entirely apposite: Judicial disqualification under Rule 2.11 of the Model Code of Judicial Conduct arises when a judge’s impartiality “might reasonably be questioned.”  The judiciary’s authority and persuasiveness are dependent upon public trust and confidence in the fairness, integrity, and impartiality of judicial officers, in fact as well as in appearance.  Indeed, the importance of such public perceptions is emphasized on the very first page of Formal Opinion 488. 

In contrast, practicing lawyers are not supposed to be impartial, either in fact or in appearance; on the contrary, lawyers have an ethical obligation to be zealous advocates of their clients’ interests.  In fact, the “appearance of impropriety” as an ethical paradigm, which was included in Canon 9 of the ABA Model Code of Professional Responsibility, has since been firmly repudiated, primarily because it was too vague a standard to be enforceable.  The Restatement observed that this standard did not “give fair warning of the nature of the charges to a lawyer respondent” and “subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it.”  The Ethics Committee conceded the point in 1975, as did the ABA when adopting the Model Rules.   

Despite the unsuitability of the analogy to judicial disqualification, it does seem sensible to try to identify bases for distinguishing different types of relationships with other lawyers that might give rise to a conflict of interest and identifying those that are waivable by client consent.

Op. 494 divides such relationships into three categories: intimate relationships, friendships, and acquaintances.  Ascertaining which of these three characterizes a relationship with opposing counsel will help to determine whether a conflict exists.  If it does, the lawyer may still be able to continue the representation under Rule 1.7(b)(1) and (b)(4), provided “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client” and “each affected client gives informed consent, confirmed in writing.”

Intimate relationships include marriage, engagement to be married, or an exclusive romantic attachment.  Intimate but non-exclusive relationships are more difficult to characterize and require a more nuanced judgment by the lawyers involved.  Lawyers cohabiting in an intimate relationship are treated pari passu with married couples.   

Friendships “may be the most difficult category to navigate.”  The opinion strikes the balance this way: Close friendships (routine socializing, vacationing together, exchanges of gifts) should be disclosed, and informed consent should be obtained; professional friendships (law school classmates, former professional colleagues) need not ordinarily be disclosed, but even if, out of an abundance of caution, disclosure is advisable, informed consent need not be obtained. 

Acquaintances are described as “relationships that do not carry the familiarity, affinity or attachment of friendships.” Examples include individuals whom the lawyer sees at social or professional gatherings, such as a professional organization or a church, but with whom there is no “close personal bond.”  These need not ordinarily be disclosed and do not require client consent.  The opinion notes, however, that disclosure “may be advisable to maintain good client relations” and may help explain to the client that the relationship may actually benefit the representation “because the lawyers can work collegially.”   

While certainly useful for promoting awareness of what constitutes a personal interest conflict in the context of relationships with other lawyers, Op. 494 fails to elaborate a clear mental process for lawyers to detect and resolve these personal interest conflicts. 

In this author’s opinion, a sensible approach would be to start by asking whether the risk is significant that the lawyer’s relationship with other counsel would materially impair professional judgment in representing each affected client.  If not, then there simply is no conflict of interest.  If so, then the self-assessment morphs to whether the lawyer “reasonably believes” that he or she can nonetheless “provide competent and diligent representation to each affected client.”  (Recall that “reasonably” and “reasonably believes” are defined terms in Model Rule 1.0).  If the answer to that question is affirmative, then the lawyer should disclose the relationship and obtain informed consent in writing, but, if negative, then it seems the conflict is not curable by consent, and the lawyer cannot ethically represent the client in the matter. 

Finally, if a lawyer is disqualified by a personal relationship conflict, what about that lawyer’s partners and associates?  Unlike conflicts involving current and/or former clients, personal interest conflicts are not automatically imputed to others in the conflicted lawyer’s firm.  In that situation, Model Rule 1.10(a)(1) would not impute the conflict if the personal interest “does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

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    Keith Fisher

    National Center for State Courts

    An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.