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New guidance helps lawyers navigate potential conflicts

October 12, 2020

Lawyers, like others, enjoy a wide variety of personal and professional contacts – acquaintances, friendships and close relationships. But when it comes to representing clients, these relationships could pose the possibility of a conflict.

Formal Opinion 494 urges lawyers to examine the nature of any relationship to determine their risk of representing a client.

Formal Opinion 494 urges lawyers to examine the nature of any relationship to determine their risk of representing a client.

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With that in mind, the American Bar Association Standing Committee on Ethics and Professional Responsibility  issued Oct. 7 detailed recommendations for how lawyers should assess and respond to potential conflicts arising from client representation and relationships with opposing lawyers.

Formal Opinion 494 urges lawyers to examine the “nature of the relationship” to determine whether “there is a significant risk” that representing a client will be “materially limited” by the lawyer’s personal relationship with opposing counsel. The opinion also examines the steps a lawyer should follow, including the level of disclosure to clients, when a lawyer and opposing counsel are personally close or intimate; have a strong friendship; or are mere acquaintances.

The new opinion is intended to assist lawyers in applying ABA Model Rule of Professional Conduct 1.7(a)(2), which provides general principles and specific guidelines on accessing and responding to potential conflicts. It draws heavily from Formal Opinion 488, which was issued in September 2019 and 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.”

Close friendships with opposing counsel, the opinion continued, should be disclosed to clients and, where appropriate, their signed informed consent should be 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,” the guidance added. It suggested, however, that disclosure of all situations “may be advisable to maintain good client relations.”

The ABA Standing Committee on Ethics and Professional Responsibility 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.

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