Blame it all on my roots,
I showed up in boots,
and ruined your black-tie affair.
~ Garth Brooks, Friends In Low Places
The most common inquiry that I receive is one in which a lawyer calls to discuss a potential conflict of interest. Most often, the potential conflict involves a former client whose interests may be adverse to those of a new client. Despite our small bar, it’s rare that I receive an inquiry involving a potential conflict arising from a lawyer’s personal relationship with opposing counsel.
So called “personal relationship” conflicts are important to understand. And, thanks to ABA Formal Opinion 494, there’s now guidance to assist us. Among others, the ABA Journal, the Professional Responsibility Blog, and Faughnan on Ethics reported the opinion’s release.
Before I get to the opinion, I’ll start with the rule.
In Vermont. Rule 1.7(a)(2) states that a conflict of interest exists whenever:
- “there is a significant risk that the representation of one or more clients will be limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (emphasis added).
Don’t forget! Unlike conflicts involving current and/or former clients, personal interest conflicts are not automatically imputed to others in the conflicted lawyer’s firm. They are imputed only if the prohibited lawyer’s personal interest presents “a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” V.R.Pr.C. 1.10(a).
So, what’s a personal interest conflict? For years, I used an example that might be too simplistic:
- Client wants to retain Lawyer.
- Lawyer doesn’t know Opposing Party well, but Opposing Party is the coach of Lawyer’s child’s sports team.
- Lawyer doesn’t want Child’s relationship with the coach to suffer.
- So, Lawyer sits out the case, but another attorney in the same firm represents Client.
Another type of personal interest that might materially limit a lawyer’s representation of a client is the lawyer’s personal relationship with opposing counsel. This is the type of conflict addressed by the recent advisory opinion. It breaks such personal relationships into three categories: intimate relationships, friendships, and acquaintances.
Per the opinion, lawyers who are married, engaged to be married, or in an exclusive intimate relationship:
- “must disclose the relationship to their respective clients and ordinarily must not represent the clients in the matter unless each client gives informed consent, confirmed in writing [and] the lawyers reasonably believe that they will be able to provide competent and diligent representation to each.”
This is consistent with the language in Comment 11 to V.R.Pr.C. 1.7.
Frankly, as those of you who know my status may have surmised, relationships are difficult enough for me. I can’t imagine navigating one in which my significant other represents a client’s adversary. Alas, knowing me, I’d probably use it as an excuse to end the relationship. And I’m not talking the attorney-client relationship.
This category is a bit trickier to analyze, especially in such a small state. Here’s the quick answer:
- “In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients. The analysis turns on the closeness of the relationship.” (emphasis in the original).
The opinion lists several types of friendships and indicates whether they are of a nature that would require disclosure and a client’s consent.
Among those for which disclosure and consent is advised are close friendships and friendships between lawyers 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 in 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.”
Friendships that should be disclosed but likely do not require client consent for continued representation include those between lawyers who were classmates or who used to practice together and who stay in touch or occasionally get together.
The opinion states that “[a]cquaintances are relationships that do not carry the familiarity, affinity or attachment of friendships.” As such, while disclosing an acquaintanceship “may be advisable to maintain good client relations,” it is not required. Examples include:
- serving on boards or committees together;
- going to the same gym or place of worship; and,
- bumping into each other around town.
Again, the opinion is here. Give it a read. Otherwise, use good judgment. Remember, even if a personal relationship with opposing counsel might not have a snowball’s chance in heck of materially limiting your representation of the client, it might make sense to disclose the relationship anyway. I’ve seen situations in which a client who learns of the personal relationship after the fact considers the failure to disclose as evidence of the conflict.
Does that make it a conflict?
But as friendly an acquaintance as I am, nobody likes learning from me that a complaint has been filed against them.
Finally, yes. I’m a fan of the third verse.