December 10, 2020 Articles

Formal Opinion 494: Guidance about Personal Relationships

Ethical quandaries when your “friend in argument” is your friend in real life.

By Margaret Monihan Toohey
Lawyers of all stripes face real ethical dilemmas when the lawyer at the opposing side’s counsel table is no stranger to their dinner table.

Lawyers of all stripes face real ethical dilemmas when the lawyer at the opposing side’s counsel table is no stranger to their dinner table.

In 2013, the word “friend” overtook “opponent” as the moniker most commonly used for opposing counsel in Supreme Court oral arguments. While members of the Supreme Court bar may not be using the term in its literal sense, lawyers of all stripes face real ethical dilemmas when the lawyer at the opposing side’s counsel table is no stranger to their dinner table.

Model Rule 1.7(a)(2) of the ABA’s Model Rules of Professional Conduct prohibits lawyers from representing a client if there is a “significant risk” that the lawyer’s representation will be “materially limited” by a personal interest of the lawyer. Comment 11 to Model Rule 1.7 specifically identifies that such a personal interest exists when a lawyer is “closely related by blood or marriage” to opposing counsel:

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. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. In such a case, the attorneys cannot handle the client’s case unless each client has given informed consent confirmed in writing.

(Keep in mind, though, that Model Rule 1.7(a)(2) personal relationship conflicts are not imputed to your firm—although particular states’ rules may differ.) 

Premium Content For:
  • Litigation Section
Join - Now