Why Yes We Can Be Friends!
Almost a year ago (wow), I wrote a bit about the State Bar Car Crash Symposium Heckler, who spent some quality time during my presentation lecturing us about the fact that sometimes plaintiff’s counsel and defense counsel are friendly with one another. (He also cornered me after my presentation, which dealt broadly with dealing with emotional situations, and complained that I didn’t consult with religious authorities about breaking bad news to a client. Oh well.)
And it does happen—sometimes I do see my existing friends on the other side of the caption, and sometimes I become friends with people on the other side after the litigation is over. It makes sense; we’re adults and adults make friends through work. I also have a friendly relationship with many of my counterparts in the various regulatory agencies (including the Office of Lawyer Regulation), which also makes sense—when you start working opposite the same There is nothing wrong with these friendships; however, sometimes, if you’re working opposite someone and you’re too close, you can run into a 1.7(a)(2) “material limitation” conflict—that is, a conflict that may not be otherwise enumerated but that puts the interests of your client at odds with your responsibilities to others or your personal interests.
Comment 11 to Model Rule 1.7 already addresses what should happen if opposing counsel is a spouse or other close relative, and indicates “a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. “ (This sort of conflict is not imputed to the firm, though; a DA can be married to a public defender and their offices can still function.) But the Rules and Comments have been silent on other kinds of relationships.
The American Bar Association came out with an opinion (which, like all such opinions, is advisory, not binding) that can help lawyers determine whether their relationship with opposing counsel risks such a conflict and needs to be disclosed. In brief, “intimate” relationships (cohabiting, engaged, exclusive dating) are treated similarly to marriage, and must be disclosed and consented to for representation to continue. Friendships (including non-exclusive dating) are treated on a sliding scale—is this a close personal friendship? Or did you go to law school together and have coffee once last February after you ran into each other at a Bar event? The former may require disclosure and consent; the latter may not. It’s a matter of judgment.
Opposing counsels who are mere acquaintances (who don’t seek out each other’s company but say hi at Bar events and chat about their kids when waiting for their case to be called) probably do not require disclosure or consent, and for good reason—that’s a good number of people and a whole lot of paperwork otherwise. As the opinion suggests may be helpful, I often disclose to clients when I know and am friendly with my adversary—”we’ve been opposite each other on a few other cases, she’s been quite reasonable to work with, and we get along well.” People usually don’t hire me to be a snarling barracuda and I make a point of not being a jerk for no reason, so that sort of disclosure lets my clients know what to expect (and perhaps that they need new counsel if they really do expect me to be a cartoon fish that can make angry facial expressions).
If this seems familiar to ABA’s 2019 opinion on personal relationships with judges, it is. Same general framework, which makes sense. We’re all human (except for the barracudas).
* Tip of the hat to my nerd friend Brian Faugnan for alerting me to this opinion. He’s a good follow on Twitter, if you are a twitterer. (I’m @EthickingStacie there, naturally, but I do not promise that My Twitter Is Not About Politics, or really that it’s about anything relevant to your life.)
