For as long as I can remember, lawyers took pride in that fact that they could pound away at each other in the court room, shout, sneer, mock and beat an adversary into a metaphorical pulp, and put it all aside the second the case was finished. The idea that being friends, even close friends, with an opposing advocate compromised a lawyer’s determination and willingness to fight for his or her client was an anathema to the whole concept of professionalism. During the Civil War, West Point classmates on opposite sides sometimes met before a battle, shared a whisky, old memories and a few tears, and the next day did their best to kill each other. That mindset was analogous to how I was taught lawyers were supposed to behave, and, indeed, did.
Now the American Bar Association has apparently decided that it was all a myth. In Formal Opinion 494, “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the ABA expresses doubts that many lawyers are up to the task.
“A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel, the ABA now says. “Lawyers must examine the nature of the relationship to determine if it creates a …conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.”
The opinion breaks possible personal relationships into three categories:
- intimate relationships, which involve living together, romantic involvement and sex
- friendships, which need to be “examined carefully,” with “close” friendships requiring disclosure to clients, and, in some cases, written consent, and
- acquaintances, which do not require disclosure or consent.
Why the ABA chose 2020 to make this significant departure from traditional cant is a mystery. Once the “appearance of impropriety” was removed from the legal ethics rules, I assumed that the principle was locked in forever that a lawyer, by virtue of being a lawyer, was immune from such human frailties as pulling metaphorical litigative punches or yielding on a client’s interests because of love, affection, or admiration for opposing counsel.
Of course, the fiction never made sense. Comment  to Rule 1.7 regarding conflicts of interest read (I assume that with the new Formal Opinion, the Comment is gone or soon will be):
When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, 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. …
I have always been critical of the limitation of that conflict to relatives. One’s loyalty or affection for a friend can easily be as intense and conflicting as that towards any relative. But the new expansion, if the profession really wants to start admitting human frailty, hardly goes far enough. What about the people a lawyer hates? The true legal professional must keep all emotions and biases out of his or her performance of duties aimed at a client’s needs. The new opinion now covers positive feelings for opposing counsel, but negative feelings are just as great a threat to a lawyer’s “independent judgment.”
You can read the whole opinion here.