Ethics Corner Article
Dear Ethics Committee:
This past month, I’ve had to two problems with opposing counsel that are new to me. In one case, opposing counsel is a good friend. In the other, I have personal difficulties with opposing counsel. We know each other well, but we have a strong mutual dislike of each other. Do I have any ethical obligations with respect to disclosing either of these relationships to my client?
The Rules of Professional Conduct address conflicts when lawyers are “closely related by blood or marriage.” Unfortunately, the Rules do not address or define conflicts arising from “personal relationships.” However, a recent ethics opinion from the ABA discusses such conflicts. As the ABA Standing Committee on Ethics and Professional Responsibility noted, “these other personal relationships may also create conflicts of interest.” If personal conflicts might interfere with an attorney’s loyalty to a client or with an attorney’s independent professional judgment, that lawyer may not represent that client without informed consent, confirmed in writing. ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 494, Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel (July 29, 2020).
The ABA opinion cites Rule 1.7(a)(2), which 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 by a personal interest of the lawyer.” Lawyers must examine the nature of the relationship to determine if it creates a Rule 1.7(a)(2) conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.
The ABA Formal Opinion 494 divides “personal relationships” into three categories, as follows:
Acquaintances. Typically, casual or professional relationships, opposing counsel who is a “mere” acquaintance does not require disqualification and probably does not require disclosure to your client;
Friendships. Friendship necessarily implies a closer relationship than acquaintances. The ABA opinion recognizes the wide variety of relationships that can be considered “friendships” and recommends a lawyer examine each relationship on its facts. If the relationship poses a “significant risk that the representation of the client will be materially limited by a personal interest of the lawyer” the relationship is a Rule 1.7(a)(2) conflict. The ABA opinion recognizes that close friendships with (or a strong personal dislike of) opposing counsel could materially limit the representation. “Regardless of whether disclosure is required, however, the lawyer may choose to disclose the relationship to maintain good client relations.”
Close family and intimate relationships. Family relationships, cohabitation, and intimate relationships, current or prospective, including dating—are likely to require disclosure and disqualification absent a written waiver by the parties, and perhaps disqualification even if the parties do not object.
Lawyers should also consider Rule 1.4, the lawyer’s duty of communication with a client. Under this rule, “[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.” Rule 1.4, Cmt. 5. When considering this rule, the lawyer should consider the client’s perception of the lawyer’s relationship with opposing counsel. A lawyer’s duty to communicate with a client may require disclosure of a relationship, even if the conflict rules do not.
How do you know if there is a risk? The ABA Opinion states that the reasonableness of a lawyer’s assessment of risk will “depend on the circumstances.” For example, a limitation would be material “if due to the personal relationship with opposing counsel the lawyer would refrain from filing a well-founded motion for sanctions against opposing counsel.” Such a risk is less if the attorney does not have direct dealings with a client and instead simply drafts a legal memorandum for a supervising attorney. Or, a strong personal dislike of opposing counsel may inhibit your ability to resolve a matter. Would your client be upset by discovering your relationship with opposing counsel? If that is a realistic possibility, it may be best to disclose your relationship.
This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its March 18, 2021 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.