Formal Opinion 494: Guidance about Personal Relationships

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.) 

Formal Opinion 494, a July 2020 ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility, goes further than Comment 11, explaining that other personal relationships—aside from blood or marriage—can also create a conflict under the ABA’s Model Rules of Professional Conduct, requiring informed consent. To assist lawyers in applying Model Rule 1.7(a)(2), the opinion identifies three categories of personal relationships that might affect a lawyer’s representation of a client: (i) intimate relationships, (ii) friendships, and (iii) acquaintances.

Intimate Relationships: No Vows ≠ No Conflict

The ABA Standing Committee on Ethics and Professional Responsibility is well aware that relationships (like everything else in the year 2020) may be complicated. Noting that “changing living patterns” suggest that more people may be living in the same household with “arrangements that do not correspond to traditional categories,” the opinion analyzes a spectrum of cohabitations and relationships.

According to the opinion, “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 (i) the lawyers reasonably believe that they will be able to provide competent and diligent representation to each client and (ii) each client gives informed consent confirmed in writing.

Opposing counsel who are in “some type of intimate relationship, but are not exclusive, engaged to be married or cohabiting,” must “carefully consider” whether the relationship creates a significant risk that the representation of either client will be materially limited by the lawyers’ personal relationships. The “prudent course,” per the opinion, would be to disclose to the affected clients and obtain their informed consent.

Friendships: Are We Talking BFFs or Just Facebook Friends?

As to friendships, the opinion recognizes that these “may be the most difficult category to navigate.” “Close friendships” with opposing counsel should be disclosed to clients and may require informed consent. Quoting from Formal Opinion 488 (a September 2019 opinion addressing judges’ personal relationships with lawyers or parties) for guidance, the opinion considers the following as “indicia of friendships that would require disclosure and, ordinarily, informed consent”:

[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.

Opposing counsel who were once law school classmates or who once practiced together but do not see each other regularly, meanwhile, will not typically require the consent of affected clients and may not even require disclosure. Whether either consent or disclosure is required “depends on the lawyer’s considered judgment as to whether Model Rule 1.7(a)(2) applies and, if so, whether the lawyer reasonably believes the lawyer can competently and diligently carry out the representation notwithstanding the conflict.”

In the end, the analysis turns on the closeness of the friendship, and lawyers must (as always) exercise their best judgment.

Acquaintances: No Close Personal Bond = Probably No Problem

The third category is acquaintances. Lawyers who are “acquaintances” may see each other at gatherings, even frequently, without feeling “a close personal bond.” They might attend bar events, present CLE programs, or even serve on committees or boards together, but their relationships “do not carry the familiarity, affinity or attachment” of friendships—which bond could materially limit the lawyer’s independent professional judgment on behalf of a client.

Lawyers who are acquaintances of opposing counsel need not disclose the relationship to clients, although the lawyers may choose to do so. As the opinion notes, disclosure may be advisable to maintain good client relations, including by explaining that a lawyer’s professional connection with opposing counsel may actually assist in the representation because the lawyers can work collegially.

In Doubt? Trust Your Gut

Formal Opinion 494 provides a thorough framework for lawyers evaluating whether an adversary is an intimate partner, a close friend, or merely an acquaintance, and how to proceed in each circumstance. That said, if the thought of facing off against that “just an acquaintance” from your alma mater or block club is enough to make you queasy, such feeling is reason enough to hit the brakes. Remember that the test is, at bottom, whether the relationship would or could impact your independent professional judgment as an attorney.