Sunday, October 11, 2020

ABA issues new formal ethics opinion on conflicts of interest

Last week, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new opinion on "conflicts arising out of a lawyer’s personal relationship with opposing counsel."  (The opinion was released on October 7, but for some reason, it is dated July 29.)

The opinion is not too long, it is well written and logical.  It applies the analysis that we all know related to "material limitations" out of Model Rule 1.7(a)(2) to circumstances involving relationships between lawyers, suggesting that the answer to the question whether a relationship can material limit the representation of a client is "it depends."  On the relationship:  the opinion uses three categories of relationships and suggests that they vary in terms of the risk of material limitation that they present.

You can read the full opinion here, but meanwhile you can check its summary, as it appears on the opinion itself:
Model Rule 1.7(a)(2) 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. A personal interest conflict may arise out of a lawyer’srelationship with opposing counsel. 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.

To assist lawyers in applying Rule 1.7(a)(2), this 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 with opposing counsel involve, e.g. cohabiting, engagement to, or an exclusive intimate relationship. These relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing 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 carefully. Close friendships with opposing counsel should be disclosed to clients, and, where required as described in this opinion, their informed consent obtained. By contrast, some friendships and most relationships that fall into the category of acquaintances need not be disclosed, nor must clients’ informed consent be obtained. Regardless of whether disclosure is required, however, the lawyer may choose to disclose the relationship to maintain good client relations.

You care read more about the opinion in the ABA Journal, which has a short summary, on Faughnan on Ethics and on the Lawyer Ethics Alert Blog.

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