The American Bar Association (“ABA”) issued Formal Opinion 494 analyzing ABA Model Rule of Professional Conduct (“Model Rule”) 1.7(a)(2), which prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation will be materially limited by a lawyer’s personal interest. A lawyer’s relationship with opposing counsel may be considered a personal interest under Rule 1.7. However, not all relationships will automatically disqualify a lawyer from representation. Rather, the lawyer must carefully consider the nature of the relationship to determine if the lawyer’s professional judgment would be materially affected. Specifically, Model Rule 1.7(a)(2) addresses the concern that a relationship with opposing counsel may lead a lawyer to inadvertently reveal client confidences or may affect the lawyer in judgment or loyalty to the client. Only relationships that may affect a lawyer’s independent professional judgment are considered a potential conflict.
The opinion divides relationships into three general categories – intimate relationships, friendships, and acquaintances- and analyzes the disclosure and client consent requirements for each.
- Intimate Relationships
An intimate relationship is marriage, engagement, cohabitation or an exclusive personal relationship. A lawyer must disclose to their client an intimate relationship with opposing counsel and may only continue representation if: (1) the client gives informed consent confirmed in writing; and (2) the lawyer reasonably believes they can provide competent and diligent representation. A failure to disclose intimate relationships and obtain informed consent can lead to discipline, disqualification or other significant consequences.
For non-exclusive intimate relationships, a lawyer should consider whether the relationship creates a significant risk that the representation of either client will be materially limited. The ABA recommends disclosure and informed consent even for non-exclusive intimate relationships as a prudent measure.
Although not explicitly addressed, the opinion indicates that intimate relationships that have ended, or end during representation, will generally be treated in the same manner as current intimate relationships and therefore may also require disclosure and informed consent.
A friendship is considered a relationship with “a degree of affinity greater than being acquainted… the term connote[s] some degree of mutual affections…”
Close friendships between opposing counsel should always be disclosed and if there is a significant risk that the representation of one or more clients will be materially limited, then the lawyer should also obtain informed, written client consent. Lawyers who regularly socialize, communicate, or coordinate activities or routinely spend time together, share confidences and intimate details of their lives, exchange gifts on holidays or special occasions, or who may have developed a mentor-protégée relationship while colleagues are considered to be close friends.
For friendships with a lesser degree of affinity, only disclosure may be required and in some instances neither consent nor disclosure may be warranted. The lawyer should consider for example, how often they see the friend and how often they communicate or keep in touch.
Ultimately, whether a friendship must be disclosed, and informed client consent obtained, is largely left to the lawyer’s judgment. However, the lawyer should consider the nature of the friendship and determine whether there is a significant risk it may materially limit representation and if so, whether they can competently and diligently represent their client.
Acquaintances are relationships that do not carry the familiarity, affinity or attachment of friendships and are coincidental or superficial, as compared to a friendship. This will often include collegial or professional relationships. Acquaintances do not need to disclose the relationship to their clients. Interestingly, the ABA still recommends disclosure, as it allows the lawyer an opportunity to discuss how the collegial relationship with opposing counsel may actually assist in the representation.
Regardless of the nature of the relationship, the role of the lawyer subject to the personal conflict should also be considered. Sole or lead counsel is more likely to have a non-waivable conflict than a lawyer with a subordinate role, no direct decision-making authority and minimal contact with opposing counsel.
Waiver of a Personal Interest Conflict
A waiver of a personal interest conflict requires the lawyer to obtain the affected client’s informed consent, confirmed in writing, and the lawyer’s reasonable belief “that the lawyer will be able to provide competent and diligent representation”. The lawyer must act as a reasonably prudent and competent lawyer in determining whether they can adequately represent their client in the face of a personal conflict.
Once the conflict is waived, the lawyer must not reveal information relating to the representation, unless otherwise permitted under the Model Rules, and must take reasonable measures to ensure that confidential information is not inadvertently disclosed to opposing counsel. This is particularly relevant for lawyers who are married or cohabitating.
If a lawyer determines at any time that they cannot provide competent and diligent representation due to the personal conflict, the lawyer must withdraw from the representation. However, personal interest conflicts, whether intimate, friendship or acquaintance, are generally not imputed to a lawyer’s firm, as long as the conflict does not present a “significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”
A lawyer should also keep in mind that notwithstanding a personal conflict under Model Rule 1.7, they may also be required to disclose a relationship with opposing counsel under the duty of communication in Model Rule 1.4.
Not all personal relationships with opposing counsel create a conflict requiring disclosure or client informed consent. A lawyer must carefully evaluate the nature of the relationship – intimate, friendship or acquaintance- and the role of the lawyer within the representation.
If the relationship is intimate in nature, the lawyer must disclose the relationship, obtain informed client consent, confirmed in writing, and determine whether they can provide competent and diligent representation to the affected client. If the relationship is a friendship, the lawyer must determine how close the friendship. For close friends, disclosure and informed consent should generally be obtained; for lesser known or less frequently encountered friends, consent and even disclosure may not be required. For acquaintances, a lawyer typically will not need to disclose the relationship to the client.
If a lawyer reasonably believes that informed consent is required under Model Rule 1.7, they should confer with opposing counsel. If opposing counsel disagrees, the lawyer should then consider whether to raise the issue with the court, if the matter is in litigation, and whether the lawyer has an obligation to report opposing counsel under Model Rule 8.3, for a violation of the Rules of Professional Conduct. Even if not required by the nature of the personal relationship, disclosure is generally always recommended and may serve as an opportunity for the lawyer to foster and maintain positive client relations.
For sample conflict waivers, please visit Lawyeringlaw.com under Model Letters and Other Documents.
 ABA Formal Opinion 488 note 5, at 4.
 Model Rule 1.7(b)(1).
 Model Rule 1.10(a)(1).