A new opinion by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, Formal Opinion 494, provides guidance as to what kind of personal relationships must be disclosed to a client to obtain informed consent. The ABA provides a summary of the opinion.
Rule 1.7 of the Rules of Professional Conduct prohibits a lawyer from representing a client if he or she has a concurrent conflict of interest, which occurs when there is a significant risk that the representation of the client will be materially limited by the lawyer's responsibilities to a third person or by a personal interest of the lawyer. Under Rule 1.7(a)(2), the lawyer may proceed with the representation if the client gives informed consent. Under the definition of Rule 1.0(e), informed consent is only possible if the lawyer has communicated adequate information and explanation about the conflict to allow the client to make an informed decision. A concurrent conflict can arise where a lawyer has a personal relationship with opposing counsel or another significant actor in the matter.
The opinion addresses three categories of relationships: intimate relationships, friendships, and acquaintances.
As to intimate relationships, the opinion states that lawyers who cohabit, are engaged to marry, or are in exclusive intimate relationships should follow the same guidelines as spouses. Such relationships must always be disclosed, and the lawyers ordinarily may not represent the clients in the matter, unless the lawyers reasonably believe that they will be able to provide competent and diligent representation, and the clients give informed consent confirmed in writing.
Lawyers who are in some type of intimate relationship that is not exclusive or involving marriage or cohabitation must carefully consider whether the relationship creates a significant risk of limitation. The opinion counsels that the prudent course would be to disclose to the affected clients and obtain their informed consent.
The opinion acknowledges that it can be a difficult determination whether a friendship represents a conflict. Close friendships may be those where gifts are exchanged, activities are commonly shared, lawyers visit each other’s homes or vacation together, have a mentor-protégé relationship, or share confidences and intimate details of their lives. Lawyers in such relationships should probably disclose and obtain informed consent.
Lawyers with less intense friendships, such as ones where the parties occasionally get together when convenient, were colleagues or classmates in the past, or who occasionally get in touch but do not regularly see each other, probably need not disclose these relationships or obtain informed consent, provided that both lawyers reasonably believe they can represent the clients competently and diligently.
The opinion describes acquaintances as people whose contacts are coincidental or relatively superficial, such as being members of the same religious, professional, or civic organizations; who regularly meet at events, present continuing education programs together, or serve on committees or boards together where their relationships may be collegial but not necessarily close; who have mutual friends; or who live in the same area. If neither seeks contact with the other, but they greet each other amicably and are cordial when their lives intersect, these would be considered acquaintances rather than friends, and disclosure or consent would not be necessary.
The opinion concludes, “Regardless of whether disclosure is mandated, however, the lawyer may choose to disclose the relationship. Disclosure may even be advisable to maintain good client relations.”