Opinion #3. Conflicts Between Related Lawyers
Issued by the Professional Ethics Commission
Date Issued: October 17, 1979
The Commission has received a request, initially addressed several months ago to the Legal Ethics Committee of the Maine Bar Association, for an advisory opinion regarding conflicts of interest between related lawyers. The request deals with three hypothetical situations:
Lawyer A versus Lawyer B, where two related lawyers are involved on opposite sides of a matter.
Lawyer A versus Lawyer B’s firm, where only one of the related lawyers is actually involved in the matter, but the opposing party is represented by the other lawyer’s firm, although that other lawyer has no involvement in the case.
Lawyer A’s firm versus Lawyer B’s firm, where the two firms are on opposite sides of a matter but neither of the related lawyers is involved.
The question posed is what are the ethical obligations of Lawyer A and Lawyer B, and their respective firms, in these three hypothetical situations, where Lawyer A and Lawyer B are related to each other as spouses, unmarried living partners, fiancees, siblings, parent and child, or in-laws.
Rules 3.4(a), 3.4(f) and 3.4(b) of the new Maine Bar Rules set forth the minimum standards of ethical conduct required in these situations:
Applicability of Rule 3.4(a). Rule 3.4(a) provides:
(a) Disclosure of Interest. Before accepting any professional employment a lawyer shall disclose to the prospective client his relationship, if any, with the adverse party; his interest, if any, in the subject matter of the employment; all the circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that could influence the client in the selection of a lawyer.
The Commission interprets this Rule to require disclosure to both clients, in all three hypothetical situations, where Lawyer A and Lawyer B have any of the six relationships set forth in the Facts.
Applicability of Rule 3.4(f). Rule 3.4(f) provides:
(f) Interest of Lawyer. Except with the informed written consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be, or reasonably may be, affected by any interest of the lawyer.
Obviously, a determination as to whether this Rule applies to any given case must depend upon the particular facts of that case. In the context of the hypotheticals presented at the beginning of this opinion, the issue would be whether the relationship between the lawyers involved is one which will, or reasonably may, affect the lawyer’s ability to exercise professional judgment because of his own financial, business, professional, or personal interests. See Reporter’s Notes to Rule 3.4(f). Since the nature of the relationship between Lawyer A and Lawyer B (friendly, supportive, estranged, etc.) clearly affects the likelihood of there being an impact on the ability of the lawyers involved to exercise their professional judgment, an advisory opinion by this Commission cannot set forth hard and fast rules that would govern all cases. A few observations are, nevertheless, in order.
To begin with, the Commission believes that the first hypothetical presented (Lawyer A versus Lawyer B) represents the type of situation where Rule 3.4(f) is most apt to apply, regardless of which of the six above‑mentioned relationships is involved. Accordingly, the Commission would recommend, as the preferred practice, that the informed written consent of each related lawyer’s client be obtained, in a case involving any of the six relationships involved, before the related lawyer accepts employment by the client.
With regard to the second hypothetical presented (Lawyer A versus Lawyer B’s firm), the Commission believes Rule 3.4(f) is most likely to apply to Lawyer A when the relationship to Lawyer B (who is not involved in the case) is as spouse, fiancee, or unmarried living partner, due to the degree of intimacy normally found in such relationships. The preferred practice would therefore be to obtain the informed written consent of Lawyer A’s client in that situation. The likelihood of Rule 3.4(f) applying to Lawyer B’s firm in this situation would seem more remote and would generally depend upon the relationship between the lawyer handling the case and Lawyer B. Finally, it would seem that Rule 3.4(f) would generally not apply to either side where Lawyer A and Lawyer B are siblings, parent and child, or in-laws, since by definition only one of the related lawyers would have any involvement in the case and the closeness of these relationships is not usually such that a conflict could reasonably be expected to arise between a lawyer’s personal interest and the interest of his client. See Reporter’s Notes to Rule 3.4(f). In all of these cases, of course, full disclosure would have to be made pursuant to Rule 3.4(a), see supra, so it would not seem unduly burdensome (and it would certainly be the preferred practice) for both lawyers involved to also secure the client’s express written consent to the representation in light of the potential (albeit remote, in most cases) conflict of interest. Failure to obtain such written consent would not be a violation of the Maine Bar Rules, however, except in those cases to which Rule 3.4(f) is found to apply.
With regard to the third hypothetical presented (Lawyer A’s firm versus Lawyer B’s firm), the Commission believes that in most cases Rule 3.4(f) would probably not apply with regard to any of the six relationships mentioned above, so that generally no written consent from either client would be required where neither related attorney will have any involvement in the case. In such cases, the disclosure requirements of Rule 3.4(a) will generally suffice to protect the clients involved from potential conflict of interest with their lawyers. In those cases where the disclosure requirements alone will not suffice, due to the special circumstances of the relationship involved, then Rule 3.4(f) would apply and the informed written consent of the client would have to be obtained.
Applicability of Rule 3.4(b). The final issue to be addressed in this opinion concerns Rule 3.4(b), which provides:
(b) Conflict of Interest. A lawyer shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests, except to the extent such employment is permitted by subdivision (d) of this rule.
This Rule goes beyond the consent requirement of Rule 3.4(f) and absolutely prohibits acceptance of employment by a lawyer (even where there has been full disclosure and written consent by the client) in situations where the exercise of the lawyer’s independent professional judgment will be, or is likely to be, adversely affected by the acceptance of such employment. As is the case with Rule 3.4(f), however, a determination as to the applicability of this Rule to any given case must be made on the basis of the particular facts of that case. Accordingly, this Commission is unable to set forth, in an advisory opinion, an across‑the‑board interpretation of the applicability of Rule 3.4(b) to the types of situations set forth in the Facts. It is important to note, however, that whenever the facts of a given case would require a related lawyer to disqualify himself from participation because of Rule 3.4(b), then all other members and associates of the disqualified lawyer’s firm must also be disqualified under Rule 3.4(k). The Commission would also make the following observations:
Rule 3.4(b) does not automatically prohibit lawyers having any of the six relationships being dealt with here, or their respective firms, from representing differing interests. On the other hand, lawyers involved in any of these situations must be extremely sensitive to the very real conflict problems that can arise because of a close personal relationship with opposing counsel. This is particularly true in the case of lawyers who are husband and wife, fiancees, or unmarried living partners, where the very nature and intimacy of the relationship can give rise to personal, psychological and/or pecuniary considerations that require very close attention to the strictures of Rule 3.4(b). As pointed out in the Reporter’s Notes to this Rule, doubts about potential conflicts between a lawyer’s personal interests and his clients’ interests should be resolved against undertaking representation. This is consistent with the underlying rationale of the Rule, which is to promote a lawyer’s undiluted loyalty to his client, free of compromising influences and loyalties. See EC 5‑1 of the ABA Code of Professional Responsibility.
Although not necessarily prohibited by the Maine Bar Rules, the representation of differing interests by lawyers who are husband and wife, fiancees, or unmarried living partners, should probably be avoided in most instances. See Maine Bar Association Opinion No. 70 (12/4/78). The very appearance of impropriety and potential conflict in such a situation argues for its avoidance even if, technically, Rule 3.4(b) would not be violated. Representation of differing interests by the firms of these spouses, on the other hand, where at least one of the lawyer‑spouses is not at all involved, is less troubling. Similarly, representation of differing interests by lawyers who are siblings, parent and child, or in‑laws, or by their respective firms, is generally far less problematical, in terms of the appearance of impropriety, than the case of lawyer‑spouses. In all of these situations, of course, extreme care must be taken to comply with the requirements of Rules 3.4(b) and 3.4(k), as noted in the preceding paragraph of this Opinion; and whenever these rules are found to apply to a given case, employment may not be accepted by the related lawyer or by any of his partners or associates.
Dissent to Ethics Opinion #79-3
To the extent that the Commission’s opinion divides the six relationships that potentially give rise to conflicts of interest into two groups (spouses, fiancees, or unmarried living partners in one; siblings, parent and child, or in‑laws in the other) with the suggestion of differing standards for the two groups, two members dissent.
Initially the Commission notes that the nature of the relationships between Lawyer A and Lawyer B (friendly, supportive, estranged, etc.) affects the likelihood of there being an impact on the ability of the lawyers involved to exercise their professional judgment. This seems to be a recognition that the nature of the specific relationship involved in any given case is a crucial variable in determining the ethical consideration. If the Commission spoke in general terms of extremely close, intimate relationships as one category, and less close, less intimate relationships as the other, this dissenting opinion would not be necessary. However, by dividing the six relationships under discussion into two separate categories several times in the opinion, the Commission may be creating the impression that there is a presumption of a greater likelihood of ethical problems where Lawyer A and Lawyer B are spouses, fiancees, or unmarried living partners than if they are siblings, parent and child, in‑laws. (For example, the opinion states that the representation of differing interests by lawyers who are spouses, fiancees, or unmarried living partners should probably be avoided, but that for siblings, parent and child, or in‑laws to do so is far less problematical.) In the opinion of the dissenter, this particular division of the relationships is not required by logic, and is in fact unreasonable and unnecessary.
Prior to adoption of the opinion, members of the Commission appeared to agree that the relationship called “unmarried living partners” could include mere roommates, as well as two people involved in a more intimate relationship with each other. There seems no logical reason why mere roommates should avoid representing differing interests to a greater extent than siblings. To thus classify roommates in the same category as spouses is simply not reasonable. Siblings, or a parent and a child, might well have emotional and/or financial bonds that create at least as great a likelihood of conflicts of interest as recently engaged fiancees, or estranged spouses. To include siblings and parents and children in the same group as in‑laws appears as unreasonable as including roommates in the same group as spouses.
If the phrase “unmarried living partners” is taken to include only intimate relationships akin to marriage, the division of relationships made by the Commission appears to rest on a particular type of intimacy which is presumably present in this first group of relationships (spouses, fiancees, or unmarried living partners) and absent in the other. The Commission appears to be drawing distinctions as to preferred ethical practices for two sets of relationships while the rationale for the particular division of the relationships into the two sets is open to question. Accurately making broad assumptions about human nature under a variety of circumstances may well be beyond the province of the Commission.
Given that the Commission initially noted that the application of an ethical rule to any given case must depend on the particular facts of the case, and that the nature of the relationship between the lawyers involved would have a bearing on the likelihood of conflicts of interest such that it could not set hard and fast rules, the repeated implication that one group of relationships appears more likely to lead to conflicts than the other is, in the dissenters’ opinion, unwise and unnecessary.