The American Bar Association recently issued Formal Opinion 494, which analyzes relationships among opposing attorneys in the context of the material limitation prohibition of the conflict rules.
The Opinion explores the juncture at which a relationship between opposing counsels rises to the level of a conflict such that an attorney may not be able to provide effective representation to his or her client. The Opinion poses questions such as, would an attorney be less likely to move for sanctions when appropriate if the opposing counsel is a close personal friend?
The Opinion divides relationships into three general categories: intimate, friendship, and acquaintances. Regarding intimate relationships, the opinion expands the current accepted conflict that arises if a married couple represents opposing parties and extends the analysis to both engaged lawyers and to lawyers who have an intimate relationship and live together. Lawyers in an intimate relationship should disclose their relationship to their clients and obtain written consent, if they believe that competent and diligent representation can be provided.
The Opinion provides an example of friendship that may need to be disclosed; close friends who regularly visit each other and vacation together. Friendship is the category that should be analyzed contextually and depending upon the circumstances may create a material limitation conflict.
Acquaintances may be lawyers who are collegial but have not developed a significant personal relationship with one another. Generally, being acquainted with an opposing counsel would not rise to the level of conflict.
Regardless of category, the Opinion suggests that attorneys consider their relationships with opposing counsel when undertaking a conflict analysis to determine whether they may have a material limitation that precludes effective representation and whether the relationship is such that they must inform the client and obtain consent.
To maintain good client relations, the opinion concludes that it is advisable to err on the side of disclosing any the relationship that may raise a concern.
Read the opinion here.
