Why Can't We Be Friends?*

There are more than 15,000 lawyers in Wisconsin (5,400 in Milwaukee County alone) and I think we all know each other. Our legal community may seem outsized for the state—possibly thanks to diploma privilege—but it’s really pretty small.

And Wisconsinites, by and large, tend to be a friendly bunch. (There is Wisconsin Nice, which means we greet our neighbors and wave a thank-you at the car that just let us merge, and there is “Wisconsin Nice,” which is when opposing counsel refers to you as “my friend on the other side” as you shoot darts at them with your eyes.)   Overall, this is helpful to our profession—we tend to be willing to give extensions to opposing parties when they need them, within reason, and shouting matches at depositions are relatively rare.

Sometimes, though, friendships among lawyers can create tension. A couple of years ago at the State Bar Car Crash Symposium, a commenter/heckler lamented the fact that sometimes plaintiffs’ personal injury lawyers are friends with defense lawyers. And he meant that generally—he thought that people on opposite sides of the caption just shouldn’t be friends, whether they’re actually opposite each other on a case or not. I neglected to ask him what he thought about plaintiffs’ lawyers married with or partnered to defense lawyers, or people who work both sides on occasion, but I also wanted to go home and I think I would still be there if I did engage. 

But his perception was that opposite-side attorney fraternization just meant everyone was on the same side, and that side wasn’t the client.  While  I would agree that it’s not a good idea to go for a drink with opposing counsel, mid-trial (for more than a few reasons), I wouldn’t go far as to say that you shouldn’t be friendly, or even friends, generally.

It gets a bit more complex when it comes to friendships between lawyers and judges.  On one hand, judges shop for groceries, go to Bar events, join gyms, send their kids to school, go to houses of worship, just like everyone else. They live in our neighborhoods and hand out candy to our kids on Halloween. (Sometimes they hand out treats for the adults. “Thank you for the Jell-O shots, Your Honor” is still the weirdest sentence I’ve ever uttered to a judge.) And that’s OK. Judges in touch with their community make better judges.

But (and there’s always a but), sometimes relationships between judges and lawyers can present conflicts. Some of these conflicts are clear cut—various statutes and codes of judicial ethics prohibit a judge from hearing a case involving spouses or family members. But what about those relationships that aren’t as close?

A recent ABA Formal Opinion parses this out a bit. Briefly, it concludes that judges need not disqualify themselves or even disclose when an attorney or party is a mere acquaintance—so, saying hi at the grocery store or at parent-teacher conferences isn’t an issue. When the relationship is closer, it may need to be disclosed to all parties so they can make an intelligent decision as to whether to request substitution; in certain circumstances, the judge may need to recuse even absent a substitution request.

I think the opinion presents a fair hierarchy—requiring disclosure or recusal for casual relationships would likely be confusing and in some cases, dilatory. In smaller areas, it may be almost impossible for a litigant to actually be able to litigate in their home counties—everyone knows everyone. The ABA opinion doesn’t reach the issue of Jell-O shots, but rest assured I have not appeared in that judge’s courtroom since that episode, so I think we can save that determination for another day.

*Sorry if I put War in your head. It was either that or Biz Markie.