The ABA has recently issued two formal opinions on when the personal relationships of judges and lawyers raise ethics issues that may require disclosure, consent, or disqualification. The opinions are in many ways instructive and in some ways flawed. For judges, Opinion 488 (2019) examines relationships with both counsel and parties. For lawyers, Opinion 494 (2020) analyzes relationships with opposing counsel.
Both opinions classify relationships under examination as “friendships,” or “acquaintanceships.” Op. 488 also examines “close personal relationships” and Op. 494 uses the somewhat similar category “intimate relationships.” Mere acquaintanceships do not require disqualification and usually do not require disclosure. A friendship may be social or professional, and may vary in “degree of affinity,” to being like family members. A close personal relationship may include a former spouse of the judge or a connection through a godparent relationship. Close friendships may well require disqualification of judges and for lawyers require disclosure, and may require either a client’s informed consent or the lawyer’s withdrawal.
Opinion 488 applies Rule 2.11 of the Model Code of Judicial Conduct. Rule 2.11 requires a judge to disqualify if the judge’s relationship with a lawyer or party would cause the judge’s impartiality reasonably to be questioned. Rule 2.11 includes several per se disqualifications, as when the lawyer or party is a member of the judge’s family. Op. 488 addresses other relationships that might be disqualifying.1
Opinion 488 finds that mere “acquaintanceships” are not disqualifying. Op. 488 states, “A judge and a lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.”
Opinion 488 is useful, but it has three flaws. The first flaw is treating judges’ relationships with lawyers and parties as being alike for disqualification. In my view, judges should (and do) more readily disclose and disqualify for a relationship with a party than with a lawyer. Judges often know and have relationships with lawyers, but judicial relationships are far less common with parties, especially in urban areas. In addition, judges and lawyers by custom and training normally can put aside all but close personal relationships and friendships.
Opinion 488 states, “A judge should disclose other intimate or close personal relationships [i.e. one “that goes beyond or is different from common concepts of friendship”] with a lawyer or party to the other lawyers and parties in the proceeding even if the judge believes that he or she can be impartial.” Two more flaws are found in Op. 488’s next sentence, “ If, after disclosure, a party objects to the judge’s participation in the proceeding, the judge has the discretion to either continue to preside over the proceeding or to disqualify himself or herself.” On the contrary, if a judge has an “intimate or close personal relationship” with a party that “goes beyond” friendship, the judge ordinarily must disqualify.2 At the other end of the spectrum, where a judge discloses a relationship that is clearly not disqualifying, the judge does not have the discretion to recuse. Citing Rule 2.7 (“A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.”), the Minnesota Board on Judicial Standards (on which I served from 2011-19) has opined that a judge who is the subject of a clearly non-meritorious objection to the judge’s presiding has a duty to continue presiding.3
ABA Formal Opinion 494 is titled “Conflicts Arising Out of a Lawyer’s Relationship With Opposing Counsel.” Opinion 494 acknowledges, “this opinion relies heavily on ABA Formal Opinion 488.” “Opposing counsel” refers both to litigators and to lawyers who are negotiating deals.
Opinion 494 gives helpful guidance on personal relationships that can cause “personal interest” conflicts. A “personal interest conflict” under Rule 1.7(a)(2) involves, “a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer.” To determine whether there is a disqualifying conflict, lawyers must examine both the nature of the relationship and the lawyer’s role in the relevant matter. The basic issue is whether the lawyer is so close to opposing counsel that the lawyer is likely to pull a punch or otherwise act less than zealously for the client.
The Rules recognize that close family relationships usually create personal interest conflicts. “Thus, a lawyer related to another lawyer, e.g. as parent, child, sibling or spouse, ordinarily may not represent a client in a matter that that lawyer is representing another party, unless each client gives informed consent.” Rule 1.7 cmt. 11. The ABA issued Op. 494 to address other personal relationships, such as close friendships and romantic relationships, which might also create personal interest conflicts. In addition, Opinion 494 states, “a lawyer’s duty of communication under Rule 1.4 might obligate the lawyer to disclose a relationship, even if the lawyer believes that the relationship would not create a conflict under Rule 1.7.” The opinion does not address whether or when this communication obligation might apply to relationships where the lawyer at one firm is not involved in the matter under examination.
In determining whether there is a personal interest conflict, Op. 494 helpfully gives weight to the lawyers’ roles. “A lawyer who is sole or lead counsel in a matter is more likely to have a disqualifying conflict than a lawyer who has a subordinate or tangential role, such as researching discrete issues or drafting sections of papers to be filed, where that lawyer has little or no direct decision-making authority in the matter and minimal contact with the opposing counsel.” Op. 494 also notes the risk of confidentiality breaches that may arise from opposing lawyers’ cohabitation.
Problems arise in Op. 494 when it addresses imputing personal interest conflicts throughout a law firm. Rule 1.10(a) imputes almost all conflicts of interest throughout a law firm. The rule makes an exception to imputation where the conflict “is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” If a lawyer at one firm is having an affair with a lawyer at another firm, and these lawyers are lead opposing counsel in a matter, there is a clear conflict. If, however, these lawyers are not involved in the adverse matter, the lawyers’ relationship ordinarily is not imputed to other lawyers at their firms.
In what extraordinary circumstance are the conflicts arising from an affair or other close relationship between lawyers at opposing firms imputed throughout the firm? Op. 494’s answer is very problematic. Op. 494 takes the position “Imputation would be appropriate, for example, when other lawyers at either firm also have personal relationships with the opposing counsel. …” Op. 494 errs by stating that imputation would be appropriate, rather than could be appropriate.
A hypothetical shows the problems with Op. 494’s position. Lawyers 1, 2, 3, and 4 are all at Firm A. Lawyer 5 is at Firm B. Lawyers 1 and 5 are negotiating a deal for clients. Lawyers 2, 3, and 4 are not involved in the deal. Lawyer 2 is having an affair with Lawyer 5. Lawyers 3 and 4 are very close friends of Lawyer 5. Because three lawyers at firm A have personal relationships with a lawyer at an opposing firm, Op. 494 imputes their personal interest conflicts throughout Firm A. Both firms, and lawyers 1 and 5, would have to disclose the friendly and romantic relationships, and seek their clients’ informed consents.
Why does Op. 494 opine that facts such as these would produce a conflict? The opinion explains, “in such circumstances, the broader ties to the opposing counsel’s firm may influence the lawyer’s independent judgment.” This answer is incorrect as a matter of law. The answer materially alters the key term of Rule 1.7(a)(2) — a mere possibility (“may”) does not amount to “a significant risk” that a representation will be “materially limited.” Op. 494’s reliance on what “may” be is especially problematic because Rule 1.7 cmt. 8 expressly states that the “mere possibility” of harm to the representation does not meet the criterion of “significant risk that the representation will be materially limited.” Comment 8 explains further, “The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.” Put more colloquially, why would lawyers 1 and 5 be likely to take a dive, rather than effectively represent a client, merely because lawyer 5’s lover and friends work on unrelated matters at an opposing firm?
Opinion 494’s imputation theory produces two extremely onerous information management problems. Under Rule 5.1, responsibilities for managing conflicts belong to managing partners as well as to the lawyers responsible for particular matters. How is law firm management to know whether more than one lawyer has a personal relationship with a lawyer in an opposing firm? The firm’s conflict database must have all relevant information. To comply with Op. 494’s imputation theory, the database must identify relationships – family, marriage, romantic, and close friends – that the firm’s lawyers have with opposing counsel. All such information must be up-to-date.
A second informational problem arises — identifying all “opposing counsel.” “Opposing counsel” apparently refers to lawyers on the other side who are playing more than a minor role in a matter. I do not know of any law firm whose conflicts database includes all opposing counsel. Moreover, a law firm may well not know all the lawyers who are playing a major role in a matter. Large firms engage in matters in which there are front-line opposing counsel from several law firms, supported by backroom attorneys who may be very involved in the matter without the other firms’ knowledge.
No law firm has ever attempted to amass and match anything like the body of information that Op. 494’s imputation theory would require. If the ABA believes that law firms are required to begin this task, it should explain why. For now, a single sentence in Op. 494 appears to impose this informational burden, without explanation and, perhaps, without recognition of the burden. ABA opinions usually are based on case law and state bar opinions, and are copiously footnoted. However, Op. 494 does not cite any authority for its position on imputing certain personal interest conflicts.
On the whole, ABA Opinions 488 and 494 are very helpful in guiding attorneys as to when personal relationships are or might be disqualifying. Although both opinions have flaws, judges and lawyers will do well to consult these opinions to determine when friendships and other personal relationships are or are not disqualifying.
William J. Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney’s ethics partner and as Director of the Office of Lawyers Professional Responsibility.