October 06, 2020

ABA issues new guidance for lawyers to navigate conflicts based on personal relationships

CHICAGO, Oct. 7, 2020 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released today detailed recommendations for how lawyers should assess and respond to potential conflicts arising from client representation and relationships with opposing lawyers.

Formal Opinion 494 explores three categories of relationships — acquaintances, friendships and close personal relationships — to assist lawyers in determining what, if any, conflicts exist under ABA Model Rule of Professional Conduct 1.7(a)(2). The new opinion draws heavily from Formal Opinion 488, issued in September 2019, which addresses judges’ personal relationships with lawyers or parties that might require disqualification or disclosure.

Formal Opinion 494 is explicit in saying that intimate relationships “must be disclosed” and asserts that “lawyers ordinarily may not represent clients in the matter, unless each client gives informed consent confirmed in writing.”

“Because friendships exist in a wide variety of contexts, friendships need to be examined closely,” the opinion continued. “Close friendships with opposing counsel should be disclosed to clients and, where appropriate … their informed consent, confirmed in writing, obtained. … By contrast, some friendships and most relationships that fall into the category of acquaintances need not be disclosed, nor is clients’ informed consent required.” Still, the formal opinion suggests disclosure of such situations “may be advisable to maintain good client relations.”

The formal opinion was developed this summer by the ABA Standing Committee on Ethics and Professional Responsibility, which periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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