A recent[1] ABA ethics opinion addresses conflicts arising out of a lawyer’s personal relationship with opposing counsel under Rule 1.7(a)(2) of the Model Rules of Professional Conduct. That Rule 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 either by a lawyer’s responsibilities to others (another client, a former client, a third person) or by a personal interest of the lawyer.
Formal Opinion 494 (“Op. 494”) considers the latter in the context of personal relationships with counsel representing different clients in the same or related matters. The point of departure for this examination is Comment [11] to the rule, which observes that when opposing counsel are related by blood or marriage, “there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment.”
The opinion expressly relies upon—and derives these categories from—an opinion issued a year earlier, Formal Opinion 488, dealing with judicial disqualification or recusal[2] based on a judge’s social or close personal relationships with lawyers or parties. This weakens Op. 494, as analogy to judicial ethics is not entirely apposite: Judicial disqualification under Rule 2.11 of the Model Code of Judicial Conduct arises when a judge’s impartiality “might reasonably be questioned.”[3] The judiciary’s authority and persuasiveness are dependent upon public trust and confidence in the fairness, integrity, and impartiality of judicial officers, in fact as well as in appearance.[4] Indeed, the importance of such public perceptions is emphasized on the very first page of Formal Opinion 488.
In contrast, practicing lawyers are not supposed to be impartial, either in fact or in appearance; on the contrary, lawyers have an ethical obligation to be zealous advocates of their clients’ interests. In fact, the “appearance of impropriety” as an ethical paradigm, which was included in Canon 9 of the ABA Model Code of Professional Responsibility,[5] has since been firmly repudiated, primarily because it was too vague a standard to be enforceable. The Restatement observed that this standard did not “give fair warning of the nature of the charges to a lawyer respondent” and “subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it.”[6] The Ethics Committee conceded the point in 1975,[7] as did the ABA when adopting the Model Rules.[8]
Despite the unsuitability of the analogy to judicial disqualification, it does seem sensible to try to identify bases for distinguishing different types of relationships with other lawyers that might give rise to a conflict of interest and identifying those that are waivable by client consent.
Op. 494 divides such relationships into three categories: intimate relationships, friendships, and acquaintances.[9] Ascertaining which of these three characterizes a relationship with opposing counsel will help to determine whether a conflict exists. If it does, the lawyer may still be able to continue the representation under Rule 1.7(b)(1) and (b)(4), provided “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client” and “each affected client gives informed consent, confirmed in writing.”
Intimate relationships include marriage, engagement to be married, or an exclusive romantic attachment. Intimate but non-exclusive relationships are more difficult to characterize and require a more nuanced judgment by the lawyers involved. Lawyers cohabiting in an intimate relationship are treated pari passu with married couples.
Friendships “may be the most difficult category to navigate.” The opinion strikes the balance this way: Close friendships (routine socializing, vacationing together, exchanges of gifts) should be disclosed, and informed consent should be obtained; professional friendships (law school classmates, former professional colleagues) need not ordinarily be disclosed, but even if, out of an abundance of caution, disclosure is advisable, informed consent need not be obtained.
Acquaintances are described as “relationships that do not carry the familiarity, affinity or attachment of friendships.” Examples include individuals whom the lawyer sees at social or professional gatherings, such as a professional organization or a church, but with whom there is no “close personal bond.” These need not ordinarily be disclosed and do not require client consent. The opinion notes, however, that disclosure “may be advisable to maintain good client relations” and may help explain to the client that the relationship may actually benefit the representation “because the lawyers can work collegially.”
While certainly useful for promoting awareness of what constitutes a personal interest conflict in the context of relationships with other lawyers, Op. 494 fails to elaborate a clear mental process for lawyers to detect and resolve these personal interest conflicts.
In this author’s opinion, a sensible approach would be to start by asking whether the risk is significant that the lawyer’s relationship with other counsel would materially impair professional judgment in representing each affected client. If not, then there simply is no conflict of interest. If so, then the self-assessment morphs to whether the lawyer “reasonably believes” that he or she can nonetheless “provide competent and diligent representation to each affected client.” (Recall that “reasonably” and “reasonably believes” are defined terms in Model Rule 1.0). If the answer to that question is affirmative, then the lawyer should disclose the relationship and obtain informed consent in writing, but, if negative, then it seems the conflict is not curable by consent, and the lawyer cannot ethically represent the client in the matter.
Finally, if a lawyer is disqualified by a personal relationship conflict, what about that lawyer’s partners and associates? Unlike conflicts involving current and/or former clients, personal interest conflicts are not automatically imputed to others in the conflicted lawyer’s firm. In that situation, Model Rule 1.10(a)(1) would not impute the conflict if the personal interest “does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”
[1] Formal Opinion 494, though dated July 29, 2020, was not actually released until October 7, 2020.
[2] Strictly speaking, “recusal” traditionally refers to a judge’s withdrawal from a case sua sponte, while “disqualification” refers to the motion of a litigant asking the judge to step down. See, e.g., Forrest v. State, 904 So.2d 629, 629 n.1 (Fla. App. 2005) (noting that “[r]ecusal is the process by which a trial court voluntarily removes itself, while disqualification is the process by which a party seeks to remove a judge from the case”). In many jurisdictions, however, this distinction has not been observed or the two terms have been conflated. See, e.g., Hendrix v. Sec’y, Fla. Dept of Corrections, 527 F.3d 1149, 1152 (11th Cir. 2008) (using the terms interchangeably); Advocacy Org. v. Motor Club Ins. Ass’n, 472 Mich. 91, 97 (2005) (Weaver J., concurring) (observing that recusal is the “process by which a judge is disqualified on objection of either party (or disqualifies himself or herself) from hearing a case.”). Cf. John P. Frank, Disqualification of Judges: In Support of the Bayh Bill, 35 Law & Contemp. Probs. 43, 45 n.7 (1970) (observing that amendments to the federal disqualification statute, 28 U.S.C. § 455, have rendered the term “recusal” obsolete). The ABA’s 1972 Code of Judicial Conduct and subsequent versions have used the term “disqualification” to mean both withdrawal sua sponte and upon motion of a party.
[3] This is the current default standard in the Model Code of Judicial Conduct and has been adopted in nearly all the states. Forty-five states have actually adopted it virtually in haec verba. (It is also the federal standard. See 28 U.S.C. § 455(a)).
[4] Canon 1 of the Model Code of Judicial Conduct expressly requires judges to avoid impropriety and the appearance of impropriety.” “Appearances matter because the public’s perception of how the courts are performing affects the extent of its confidence in the judicial system. And public confidence in the judicial system matters a great deal . . . public confidence in our judicial system is an end in itself.” American Bar Ass’n, Justice in Jeopardy: Report of the Commission on the 21st Century Judiciary 10 (2003).
[5] Canon 9 provided, “A lawyer should avoid even the appearance of professional impropriety.”
[6] Restatement (Third) of the Law Governing Lawyers § 5(c) (2000).
[7] See Formal Opinion 342, n.17, reprinted in 62 A.B.A. J. 517 (interpreting the appearance standard and characterizing it as “too vague to be useful”).
[8] “In the context of private practice, the test has no apparent limits except what a particular tribunal might regard as impropriety. . . . [S]uch a standard is too vague and could cause judgments about the propriety of conduct to be made on instinctive, ad hoc, or ad hominem criteria.” ABA Comm. on Evaluation of Model Rules of Prof’l Conduct 53 (Prop. Final Draft 1981).
[9] Formal Opinion 488 used a slightly different spectrum: “(1) acquaintanceships, (2) friendships, and (3) close personal relationships.” The latter included not just romantic relationships but also situations where a romance was not existing but desired, former romantic interests (e.g., a judge divorced from a lawyer where the two remain in communication because, for example, they share custody of children), and godparents. Despite Op. 494’s reliance on Formal Opinion 488, the former inexplicably does not consider the latter’s example of divorced couples sharing custody of their children.
