Wisconsin Lawyer: Ethics: Friends with Opposing Counsel: Disclosure Required?:

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Format: MM/DD/YYYY
    February
    11
    2020

    Ethics: Friends with Opposing Counsel: Disclosure Required?

    The existence of a close relationship with opposing counsel might not necessitate the client’s consent to the representation, but probably it is a best practice for the lawyer to disclose that information to the new client.

    Dean R. Dietrich

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    Question

    A new client has asked me to represent her in a litigation matter. The lawyer on the other side is a dear friend whom I have known for many years. Must I disclose that information to the new client?

    Answer

    All lawyers have friendships with other lawyers; sometimes the friendships are close and other times they are casual. The interesting challenge is when a lawyer has a close personal relationship with another lawyer, and the lawyer is asked to represent a client on the other side of a matter for which the close friend is the lawyer or advocate for the other side. The lawyer has to decide whether he or she can effectively represent the client while aware that a close friend is handling the case for the opposing party.

    Dean R. Dietrichcom dietrich dvlawgroup Dean R. Dietrich, Marquette 1977, of law firm of Dietrich VanderWaal Law Group SC, Wausau, is past chair of the State Bar Professional Ethics Committee.

    There are very real and practical considerations that must be taken into account when deciding whether to represent this new client. SCR 20:1.7 of the Wisconsin Rules of Professional Conduct, regarding conflicts of interest, provides that a conflict of interest might exist if the lawyer cannot effectively represent a client because of responsibilities (often called loyalties) that are due to another client, a former client, another person, or the personal interests of the lawyer.

    In this case, the lawyer must analyze whether he or she can provide competent representation to the new client even though he or she might have a very close personal relationship with the lawyer on the other side. That requires the lawyer to analyze the nature of the representation, the degree of conflict that might arise during the representation, and whether the lawyer will feel constrained in effectively advocating for his or her new client because of his or her relationship with the lawyer on the other side of the matter.

    This is a personal decision that the lawyer must make after carefully analyzing all facts related to the representation being requested by the new client. The lawyer might even conclude that the close personal friendship with opposing counsel may be a benefit to the new client based on the potential for a resolution of the matter because of the friendship that exists.

    The other question in this situation is whether the lawyer has an obligation to disclose the existence of the close, personal friendship to the new client. The relationship with opposing counsel might or might not affect the nature of the representation by the lawyer and might not become a factor in an analysis of whether a conflict of interest exists.

    A conflict of interest might exist if the lawyer cannot effectively represent a client because of responsibilities (often called loyalties) that are due to another client, a former client, another person, or the personal interests of the lawyer.

    An argument can certainly be made, however, that a close personal relationship with opposing counsel is a factor related to the representation of the new client and should be a topic of discussion with the new client when the representation commences. This might not be an ethical obligation but certainly is a business consideration, to avert the possibility of the new client becoming aware of the close, personal relationship at a later date and then questioning whether the lawyer effectively advocated for the client. The disclosure of that information probably is essential to ensure that the new client is fully informed of the nature and extent of the services that will be provided by the lawyer. Some lawyers would disagree, especially in situations in which there are a limited number of lawyers to provide representation to the new client.

    Lawyers must understand that under the conflict-of-interest rules, the lawyer must be able to provide unfettered representation to the client or receive a consent from the client to provide representation after disclosing the facts that would constitute some type of restriction on the duty of loyalty and duty of advocacy for that client. The existence of the close personal relationship with opposing counsel might not rise to the level of requiring a consent from the client to the representation, but it certainly would be a best practice for the lawyer to disclose that information to the new client to avoid a potentially unpleasant situation after the representation has begun.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.




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