Up-to-date steering on relationships with different attorneys and private conflicts of curiosity

One recently[1] The ABA Ethics Opinion deals with conflicts arising out of an attorney’s personal relationship with an opposing attorney under Rule 1.7 (a) (2) of the Model Rules of Professional Conduct. This rule prohibits an attorney from representing a client without a consent form if there is a significant risk that the representation of the client, either through the responsibility of one attorney to others (another client, a former client, a third person) or by a significant Personal interests of the lawyer are restricted.

Formal Opinion 494 (“Op. 494″) looks at the latter in the context of personal relationships with lawyers representing different clients on the same or related matters. Comment is the starting point for this test [11] on the rule that states that when opposing attorneys are related by blood or marriage, “there is a significant risk that the client’s trust will be exposed and that the attorney’s family relationship will compromise both loyalty and independent professional judgment. ”

The statement is expressly based on a statement issued a year earlier, Formal Statement 488, which deals with the judicial disqualification or rejection, and derives these categories[2] based on a judge’s social or close personal relationships with lawyers or parties. This weakens Op. 494, since the analogy to legal ethics is not entirely correct: The judicial disqualification according to Rule 2.11 of the model code of conduct arises when the impartiality of a judge “could reasonably be questioned”.[3] The authority and persuasiveness of the judiciary depends on the public trust and confidence in the fairness, integrity and impartiality of judicial officers, in fact and in appearance.[4] Indeed, the importance of such public perceptions is highlighted on the very first page of Formal Statement 488.

In contrast, practicing lawyers should not be impartial, whether in fact or outwardly. On the contrary, lawyers have an ethical obligation to zealously advocate the interests of their clients. Indeed, the “occurrence of inappropriateness” as an ethical paradigm contained in Canon 9 of the ABA Model Code of Professional Responsibility is[5] has since been resolutely rejected, largely because it was too vague a standard to be enforceable. The restatement noted that this standard “did not give an attorney interviewed an adequate warning of the nature of the charge” and “subjective and idiosyncratic considerations could influence a hearing panel or reviewing tribunal in resolving an indictment based solely on that charge”.[6] The ethics committee conceded the point in 1975,[7] just like the ABA when adopting the model rules.[8]

Despite the inappropriateness of the judicial disqualification analogy, it makes sense to establish bases for distinguishing between different types of relationships with other lawyers that could give rise to a conflict of interest and those that may be waived with the client’s consent.

Op. 494 divides such relationships into three categories: intimate relationships, friendships, and acquaintances.[9] Determining which of these three characteristics characterizes a relationship with an opposing attorney will help determine if there is a conflict. In this case, the attorney may continue to represent under Rule 1.7 (b) (1) and (b) (4), provided that “the attorney has a reasonable understanding that the attorney will be able to provide a competent and to provide careful representation. Each affected customer ”and“ Each affected customer gives a written declaration of consent. “

Intimate relationships include marriage, engagement to be married, or an exclusive romantic bond. Intimate, but not exclusive, relationships are more difficult to characterize and require more differentiated judgment from the lawyers involved. Lawyers who live together in an intimate relationship are treated the same as married couples.

Friendships “are possibly the hardest category to navigate.” Opinion is balanced this way: close friendships (routine socializing, vacationing together, exchanging gifts) should be disclosed and informed consent obtained; Professional friendships (law school classmates, ex-workmates) do not normally need to be disclosed, but even if disclosure is advisable out of caution, informed consent is not required.

Acquaintances are described as “relationships that do not have the familiarity, affinity, or bond of friendship.” Examples of this are people the lawyer sees at social or professional meetings, e.g. B. a professional organization or a church, to which, however, no “close personal connection” exists. These usually do not need to be disclosed and do not require customer consent. The opinion notes, however, that disclosure “may be advisable in order to maintain good customer relationships” and can explain to the customer that the relationship actually benefits the representation “because the lawyers can work collegially”.

While this is certainly useful in promoting awareness of what constitutes a personal conflict of interest in the context of relationships with other lawyers, Op. 494 fails to develop a clear mental process for lawyers to identify and resolve these personal conflicts of interest.

In the opinion of this author, it would be useful to first ask whether there is a significant risk that the attorney’s relationship with another attorney could significantly affect professional judgment in representing each client concerned. If not, there is simply no conflict of interest. If so, the self-assessment changes according to whether the lawyer “reasonably believes” that he or she can nevertheless “offer every client concerned competent and careful representation”. (Recall that “reasonable” and “reasonably believes” are terms defined in Model Rule 1.0). If the answer to this question is positive, the attorney should disclose the relationship and obtain written informed consent. However, if this is negative, the conflict does not appear to be curable by consent and the attorney cannot ethically represent the client on the matter.

If an attorney is disqualified because of a personal relationship conflict, what about that attorney’s partners and employees? Unlike conflicts involving current and / or previous clients, personal conflicts of interest are not automatically imputed to others in the law firm of the conflict. In this situation, model rule 1.10 (a) (1) would not assume the conflict if the personal interest “does not pose a significant risk of significantly restricting the representation of the client by the remaining lawyers in the firm”.

[1] Formal Opinion 494 of July 29, 2020 was only published on October 7, 2020.

[2] Strictly speaking, “denial” traditionally refers to a judge’s withdrawal from such a spontaneous case, while “disqualification” refers to a request from a litigator asking the judge to resign. See e.g. B. Forrest versus State, 904 So.2d 629, 629 n.1 (Fla. App. 2005) (with reference to the fact that “[r]Ecusal is the process by which a court will voluntarily remove itself, while disqualification is the process by which a party attempts to remove a judge from the case. “) In many countries, however, this distinction was not observed or the two terms were merged. See e.g. B. Hendrix v. Sec’y, Fla. Dept of Corrections, 527 F.3d 1149, 1152 (11th Cir. 2008) (using the terms interchangeably); Advocacy Org. V. Motor Club Ins. Ass’n, 472 me. 91, 97 (2005) (Weaver J., concurring) (noting that denial is the “process by which a judge is excluded from hearing a case based on an objection by a party (or himself).”) . See John P. Frank, Disqualification of Judges: In Support of the Bayh Law, 35 Law & Contemp. Probs. 43, 45 n.7 (1970) (with reference to the fact that changes to the Federal Disqualification Act, 28 USC § 455, have overtaken the term “rejection”). The ABA Code of Conduct of 1972 and subsequent versions have used the term “disqualification” to denote both a spontaneous withdrawal and at the request of a party.

[3] This is the current standard in the Model Code of Judicial Conduct and has been adopted in almost all states. 45 states have actually adopted it in practice in haec verba. (It is also the federal standard. See 28 USC § 455 (a)).

[4] Canon 1 of the Model Code of Judicial Conduct specifically urges judges to avoid inappropriateness and the appearance of inappropriateness. “Appearance is important because the public’s perception of the performance of courts affects their level of confidence in the judicial system. And public confidence in the justice system is very important. . . Public trust in our justice system is an end in itself. American Bar Ass’n, Justice at Risk: Report from the Commission on the Justice of the 21st Century 10 (2003).

[5] Canon 9 stated, “A lawyer should avoid even the appearance of professional inappropriateness.”

[6] Restatement (third) of the Lawyers Act § 5 (c) (2000).

[7] See Formal Statement 342, No. 17, reprinted in 62 ABAJ 517 (Interpretation of Appearance Standard and Characterization as “Too Vague to Be Useful”).

[8] “In the context of private practice, the test has no obvious limits other than what a particular court may find inappropriate. . . . [S]Such a standard is too vague and can lead to judgments about the correctness of behavior based on instinctive, ad hoc or ad hominem criteria. “ABA Comm. for the evaluation of model rules for professional behavior 53 (Prop. Final Draft 1981).

[9] Formal Statement 488 used a slightly different spectrum: “(1) acquaintances, (2) friendships, and (3) close personal relationships.” The latter encompassed not only romantic relationships but also situations in which romance did not exist but was desired, previous romantic interests (e.g. a judge divorced from a lawyer with whom the two remain in communication, e.g. because they share custody of children) and godparents. Despite Op. Since 494 relies on formal opinion 488, the former inexplicably fails to take into account the latter’s example of divorced couples sharing custody of their children.

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