Ezel / Ethics Opinions / ABA
ABA 2020-07-29

Does a lawyer have to tell the client when the lawyer is friends with, or in a relationship with, opposing counsel?

Short answer: It depends on how close the relationship is. The opinion sorts relationships with opposing counsel into intimate relationships, friendships, and acquaintances. Intimate relationships generally require disclosure and the client's informed consent confirmed in writing; close friendships call for disclosure and sometimes consent; casual acquaintances need not be disclosed.
Currency note: this opinion is from 2020
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

ABA Formal Opinion 494: Personal Relationships With Opposing Counsel

Short answer: The opinion concludes that a lawyer's personal relationship with opposing counsel can create a personal-interest conflict under Model Rule 1.7(a)(2) where there is a significant risk the representation will be materially limited, and it sorts such relationships into three categories, intimate relationships, friendships, and acquaintances, with different disclosure and informed-consent requirements for each.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses when a lawyer's personal relationship with a lawyer on the other side of a matter creates a conflict. It applies Model Rule 1.7(a)(2), which bars a representation, absent informed consent confirmed in writing, when there is a significant risk that the representation will be materially limited by a personal interest of the lawyer. Drawing on its earlier opinion about judges' relationships (Formal Opinion 488) and Comment [11] to Rule 1.7, the opinion organizes relationships into three groups.

For intimate relationships, the opinion treats lawyers who are married, engaged, cohabiting, or in an exclusive intimate relationship like the family situations Comment [11] addresses: "these relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing clients in the matter, unless each client gives informed consent confirmed in writing." Intimate relationships that are not exclusive call for careful analysis of whether a significant risk of material limitation exists, with disclosure and consent the prudent course.

For friendships, the opinion says the analysis turns on the closeness of the friendship. Close friendships, marked by regular socializing, exchanging gifts, vacationing together, or sharing confidences, should be disclosed and may require consent. More casual friendships, such as former co-workers who occasionally share a meal or law school classmates who stay in touch, may require disclosure but ordinarily not consent, and sometimes need not be disclosed at all, depending on the lawyer's considered judgment under Rule 1.7(a)(2). For acquaintances, the opinion concludes relationships that lack the familiarity or attachment of friendship, such as belonging to the same gym, bar association, or place of worship, "need not [be] disclose[d]," though the lawyer may choose to disclose to maintain good client relations.

The opinion adds cross-cutting points: some conflicts may be non-waivable (for example, a secret affair the lawyer cannot disclose); even after consent the lawyer must protect confidential information under Rule 1.6 and withdraw under Rule 1.16 if competent and diligent representation becomes impossible; and these personal-interest conflicts are ordinarily not imputed to other lawyers in the firm under Rule 1.10(a)(1).

In practice

Under this opinion, a lawyer who has a personal relationship with opposing counsel must evaluate it under Rule 1.7(a)(2) and respond according to its closeness. The opinion holds that intimate relationships (marriage, engagement, cohabitation, or an exclusive intimate relationship) ordinarily require disclosure and each client's informed consent confirmed in writing; close friendships call for disclosure and sometimes consent; and mere acquaintances require neither. It notes that some relationships cannot be waived because disclosure itself is impossible (such as a secret affair), that the duty to communicate under Rule 1.4 may require disclosing a relationship even where no conflict exists, and that the conflict is personal and ordinarily not imputed to the lawyer's firm.

Common questions

Q: My spouse or partner is opposing counsel. Can I stay on the case?

A: The opinion says intimate relationships such as marriage, engagement, cohabitation, or an exclusive intimate relationship must be disclosed, and the lawyers ordinarily may not represent the opposing clients unless each client gives informed consent confirmed in writing.

Q: I'm close friends with the lawyer on the other side. Do I have to tell my client?

A: Per the opinion, close friendships should be disclosed to the affected client and, depending on the circumstances, may require informed consent; the analysis turns on how close the friendship is.

Q: Opposing counsel and I just belong to the same bar association. Is that a conflict?

A: The opinion says acquaintances who lack the attachment of friendship do not create a conflict and need not be disclosed, although a lawyer may choose to disclose to maintain good client relations.

Q: Can every such conflict be cured by consent?

A: No. The opinion notes some conflicts may be non-waivable, for example where the relationship is a secret affair the lawyer cannot disclose, or where the relationship would keep the lawyer from making a well-founded motion.

Background and rules framework

The opinion interprets Model Rule 1.7(a)(2) (personal-interest conflicts) and its Comment [11] (relationships by blood or marriage), with the waiver standard of 1.7(b). It applies Model Rule 1.4 (communication), Model Rule 1.6 (confidentiality), Model Rule 1.10(a)(1) (imputation, which ordinarily does not reach personal-interest conflicts of this kind), and Model Rule 1.16 (withdrawal).

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.7(a)(2) and Comment [11] (personal-interest conflicts)
  • ABA Model Rule 1.4 (communication), 1.6 (confidentiality)
  • ABA Model Rule 1.10(a)(1) (imputation), 1.16 (withdrawal)

Other opinions cited:

  • ABA Formal Op. 488 (2019): judges' personal relationships with lawyers and parties
  • ABA Formal Op. 96-400 (1996): job negotiations with an adverse firm
  • ABA Formal Op. 97-406 (1997): representing or being represented by opposing counsel in an unrelated matter

See also

Source