08 October 2020

US lawyers need to be wary of conflicts caused by personal relationships, ABA says

Alison Hook argues that the wave of initiatives to reform US bar rules lack a crucial ingredient: government action

New guidance outlines types of relationships that could violate professional conduct rules

US lawyers must take care with potential conflicts created by personal relationships with opposing attorneys that could fall foul of the American Bar Association's rules around professional conduct, according to new guidance from its ethics and professional responsibility committee.

While the ABA’s professional conduct rules address conflicts arising from familial relationships, it doesn’t address other types of personal relationships. Formal Opinion 494 outlines how lawyers should manage potential conflicts based on the nature of those relationships – whether they are just acquaintances, friends or much more intimate. 

The guidance states that very close relationships between lawyers on opposing sides needs to be disclosed, and that lawyers shouldn’t represent clients in that situation unless both clients give written consent. However, not all relationships need to be disclosed – acquaintances and even some friendships would not create a conflict. 

According to the guidance: “Some relationships with opposing counsel are so casual that they would not affect a lawyer’s independent professional judgment.”

In other cases, even if a lawyer believes that a friendship may not create a conflict, that relationship still needs to be disclosed. 

To help lawyers figure out whether a relationship is potentially problematic, the committee outlined circumstances that might indicate the type of relationship. For instance, lawyers who exchange gifts on special occasions or who regularly socialise with each other would need to disclose that relationship and seek consent from both clients. For lawyers that maybe worked together in the past and share occasional meals, that might require disclosure but it wouldn’t require consent. And for lawyers who were perhaps classmates and only stay in touch periodically, that may not even require disclosure.

The guidance defines acquaintances as lawyers who might see each other at gatherings or business events, but who share no personal bond. While lawyers are not required to disclose this type of relationship, the ABA’s ethics committee says that disclosure may be advisable anyway in order to maintain good client relations.

The committee wrote: “Lawyers must examine the nature of the relationship to determine if there is a significant risk that lawyer’s representation of the client will be materially limited by the lawyer’s personal relationship and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client.”

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