May a lawyer handle a matter in which the lawyer’s opponent is represented by the lawyer’s good friend? The lawyer’s neighbor? Girlfriend or boyfriend?
In July 2020, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 494 to assist lawyers in evaluating whether a personal relationship with opposing counsel creates a conflict of interest under Model Rule 1.7(a)(2). See ABA Formal Op. No. 494 (July 29, 2020). The opinion identifies and analyzes three categories of potential relationships between opposing counsel that raise concerns under Rule 1.7(a)(2)–intimate relationships, friendships, and aquaintances.
A significant risk of a conflict exists when a lawyer is married to, engaged to be married to, or in an exclusive intimate relationship with opposing counsel. Under such circumstances, neither lawyer in the relationship may represent a client in the matter unless the affected clients give informed consent and the lawyers reasonably believe that they will be able to provide competent and diligent representation to their clients. As to non-exclusive intimate relationships, a lawyer need not inform a client if the lawyer reasonably believes that the lawyer’s representation will not be limited by the relationship. But, of course, the best practice would be to obtain the client’s informed consent.
Friendships between opposing counsel remain a gray area. The disclosure and informed consent rules depend on the closeness of the friendship. A lawyer should disclose if the lawyer has a close friendship with opposing counsel, and when appropriate, obtain the client’s informed consent. Opposing counsel 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” may be considered close friends. See ABA Formal Op. 488 at 4.
As to more distant friendships, a lawyer should inform the lawyer’s client about the friendship, but ordinarily the lawyer need not obtain informed consent. Such friendships might include former co-workers or those who occasionally share a meal with the lawyer.
Finally, as to friendships remote in time or place, a disclosure may not even be required. For example, adversaries who were law school classmates but don’t stay in close contact will typically not be required to obtain informed consent and may not be required even to disclose the relationship.
A lawyer need not inform the lawyer’s client or obtain informed consent if opposing counsel is simply an acquaintance. “Acquaintances” do not make any particular effort to seek each other’s company. Examples of such relationships might include belonging to the same gym or professional organization, living in the same neighborhood, frequenting the same business or restaurant, seeing each other when socializing with mutual friends, and representing co-parties in litigation.
The ABA’s opinion is helpful, particularly at the outer ends of the relationship spectrum. But in the “friend zone” in between, lawyers still must evaluate their personal relationships with opposing counsel, consider whether such relationships may impair their professional judgment, and disclose and obtain client consents when appropriate.