Love is in the air this month of romance, and our loss prevention hotline is answering your steamiest inquiries: can I date opposing counsel?
If the question brings up nostalgia of an early career fling or a longing to invite a certain someone out for coffee, you’re not alone. The question is pervasive enough for both the Ohio Board of Professional Conduct and the American Bar Association to have recently considered it. In 2022, the Board of Professional Conduct released Opinion 2022-06, Conflicts Arising out of Personal Relationships with Opposing Counsel. In July of 2020, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 494 which divided its guidance among three categories of personal relationships: “intimate relationships, friendships, and acquaintances.”
Rooted in Rule of Professional Conduct 1.7, these opinions consider scenarios under which a personal relationship could materially limit the lawyer’s ability to render appropriate advice due to the lawyer’s “own personal interests.” While the phrase “personal interests” is generally thought to implicate financial interests, personal interests such as fidelity, loyalty, and love are also encompassed here.
Professor Dru Stevenson, Wayne Fischer Research Professor at South Texas College of Law in Houston shared his lecture on ABA Formal Opinion 494 in this 12-minute YouTube video. He explains the analysis that the Formal Opinion suggests and how each scenario needs to be evaluated to determine whether the relationship needs to be disclosed, and if so, whether informed consent must be obtained.
Some key takeaways from Formal Opinion 494 from Professor Stevenson:
- If the relationship rises to a certain level, such as a very significant relationship where your life and that of opposing counsel’s is intertwined, representation of opposing parties cannot occur unless each affected client gives informed consent confirmed in writing. Some examples are married or engaged attorneys, attorneys living together or in an exclusive romantic relationship, as well as very close friends with significant social and familial integration. The Opinion also suggests that attorneys who have a mentor-protege relationship should also disclose and obtain informed consent confirmed in writing if representing adverse parties.
- Professional acquaintanceships or even casual friendships usually don’t even need to be disclosed to clients. This could be attorneys who exchange small talk at bar association functions or occasionally meet for lunch.
- What the role each lawyer plays in the matter is relevant to the analysis. For example, if the attorneys who are intimately involved are merely researching a supporting brief and not serving as lead counsel, this may alleviate the need for informed consent from the affected clients.
- It may be wise to “play it safe.” Professor Stevenson suggests, “Regardless of whether disclosure is mandated, however, the lawyer may choose to disclose the nature of the relationship with opposing counsel to the client to maintain good client relations.”
Keep in mind Comment  to Rule 1.7: “The principles of loyalty and independent judgment are fundamental to the attorney-client relationship and underlie the conflict of interest provisions of these rules.” It could significantly undermine that bedrock principle of loyalty if your client later discovers your relationship with opposing counsel.
Ohio’s Advisory Op. 2022-06 also explores various situations when a personal relationship between opposing attorneys creates a conflict. Like ABA Formal Opinion 494, Ohio Advisory Opinion 2022-06 extends the guidance contained in the Rules of Professional Conduct regarding opposing counsel who are related by blood or marriage to a broader array of relationships. The opinion recommends as follows:
- “Spouses may not represent opposing parties without informed, written consent of affected clients.”
- And specifically, “[w]hen a prosecutor-spouse and criminal defense lawyer spouse are practicing in same jurisdiction, the best practice is for the prosecutor’s office to assign another prosecuting attorney to the case and screen the prosecutor-spouse from any matter involving his or her spouse.”
- “Other lawyers in lawyer-spouse’s law firm may represent criminal defendants without disclosure and consent, so long as the lawyer does not have a close personal relationship with the specific prosecutor assigned to the case. The lawyer-spouse may represent criminal defendants without disclosure and consent so long as the lawyer-spouse does not have a close personal relationship with the specific prosecutor assigned to the case.”
- “Domestic partners, individuals in an intimate relationship, close friends, and roommates have the same duties as those in spousal relationships in evaluating potential conflicts of interest. Lawyers who are domestic partners or in intimate relationships are advised to adhere to the client consent and disclosure obligations applicable to married lawyers. Lawyers in other relationships should consider the characteristics present in the relationship and exercise professional judgment regarding client disclosure and consent.”
The opinion further suggests elements to be included in a written disclosure to a client for their informed consent, if it is determined to be necessary.
So, perhaps you do have Valentine’s Day plans after all.
Don’t forget about OBLIC’s complimentary ethics consults for insured attorneys. For more information or to utilize this policyholder benefit, don’t hesitate to contact us.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.