The Legal Ethics Of Going On A Date With Opposing Counsel
Sometimes, a legal blogger has to hunt for topics to write about. And sometimes they’re delivered through the philly.com RSS news feed:
Q: I am an attorney. Several years ago I had a case in which my “adversary” was a nice, very attractive woman. … At present I have several cases with her and we have spoken on the phone a couple of times. Although we only talk business, from my perspective we get along well.
I would like to ask her out, but there is a twofold problem.
The first is whether she is in a relationship. And the second is that if she doesn’t want to go out with me, it could make for a very uncomfortable situation going forward professionally.
How can I ask her out, or even speak with her in a nonbusiness setting to see if she has any interest?
I’m not in the business of giving out relationship advice, but I can give a handful of pointers relating to protocol in the legal world. I’d recommend against asking her out in the time before or after a deposition or a hearing — many lawyers in courtroom situations are at work and cannot easily shift gears — but other than that you can stick to the basics: call her and ask her out to lunch or dinner at a nice sit-down restaurant. Consume, at most, just under two drinks. Then be yourself, just like mom always said.
But Steve and Mia, the Daily News advice columnists, skipped over the relationship advice and went right to legal ethics:
Steve: The ask-out part is easy; the legal issues are not. Case law and ethics require you to disclose to your client and the court any relationship you might have with opposing counsel. Might be best to avoid that mess until all your cases with her are completed. Then, simply ask her out for coffee and find out her relationship status. If she’s interested in you, she’ll let you know.
Mia: Steve’s right. Don’t make a move until your legal dealings are finished. Until then, lay off the Facebook stalking, or you’ll end up at the top of her friends list, which is a big giveaway that you’ve been creeping on her page.
Shucks; depending on the type of work, if they have “several cases” together that could take years before the “legal dealings are finished.” Said The Bard of Avon, “the course of true love never did run smooth.”
No worries, young man, we’re going to work through this one together.
There’s no professional responsibility rule or case law that says whether you can or can’t go on a date with opposing counsel, and no rule or case that tells you at what point you need to disclose the relationship to the client. The comments to ABA Model Rule 1.7, includes this distinguishable passage:
 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. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.
Notice that it generally refers to “the existence and implications of the relationship between the lawyers,” which would seem to speak broadly, but then limits itself with a description limited to close family members. Indeed, as far as I’ve seen, the rule is construed narrowly, at least in terms of whether or not an ethical violation is found, but it is construed a bit more broadly in terms of whether the client is entitled to post-trial relief for undisclosed relationships. See, e.g., State v. Sheika, 766 A. 2d 1151, 1161-1162 (N.J. App. Div. 2001)(finding no violation where criminal defense lawyer’s daughter was an assistant prosecutor in the office that prosecuted defendant but played no role in prosecution, but also remanding for findings on claims of ineffective assistance of counsel).
The Sheika case recounts the three major opinions I know of on the subject: People v. Jackson, 167 Cal.App.3d 829, 832, 213 Cal.Rptr. 521, 522 (1985) (sustained dating relationship between defense counsel and prosecutor constituted conflict requiring reversal of conviction); Commonwealth v. Croken, 432 Mass. 266, 269, 733 N.E.2d 1005, 1013 (2000) (evidentiary hearing was warranted to determine whether attorney-client relationship was impaired by personal relationship between defense counsel and prosecutor); State v. Kelley, 20 S.W.3d 147, 154 (Tex.Ct.App.2000)(familial relationship between trial counsel and assistant prosecutor found not to have impaired defendant’s right to the effective assistance of an attorney).
Sure, in some people’s vision of an ideal world, lawyers will disclose every contact they have with opposing counsel. But that doesn’t happen in practice, and it would be impractical to carry it out effectively. The bulk of what I know about my opposing counsel in a current case I learned during other cases, which means that information is presumptive confidential as a result of my duties to my prior clients — and, more to the point, the vast majority of relationships among opposing counsel do little to alter the situation. There are no “implications” of the relationship: I take my duties to my client seriously, as do all of the opposing lawyers I know on a personal level. I would never dream of limiting my advocacy to benefit a close friend, family member, or romantic interest, and I would be insulted and disappointed if any of them ever expected me to do so.
Then again, were I the client, I’d certainly like to know if the judge and the prosecutor were having an affair (though that apparently was just fine in Texas), and “disclosure (preferably in writing) of family and other relationships, however attenuated, is always the better course even in situations where it seemingly is not required by [the rules]” is perfectly good advice. Whatever the rules require (the Bar advisory opinions I’ve seen usually worry about a real adverse financial interest due to marriage), you have the general duty to put the client first and foremost.
You obviously don’t have to tell the client if you once grabbed lunch with opposing counsel, while you obviously do have to tell the client you’re married to opposing counsel. I don’t think anyone believed otherwise. In my humble opinion, the best guide for when you have to disclose is found a little bit higher up the page on those ABA Model Rule comments:
Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.
That, to me, is where the analysis begins. At what point do you believe a court would seriously question your ability to represent your client? Asking her out for lunch or having dinner with her shouldn’t change that, not if you took your duty to be a zealous advocate seriously in the first place. But at some point, if you have any doubt that a court would say you could fairly carry out your professional duties, then it’s time to either hold off on the relationship, disclose the relationship to the client, or ask someone else (they can be in your firm, romance isn’t imputed to others in the firm) to take over.
The concern is if “love hath made thee a tame snake.” As You Like It, Act 4, Scene 3. If you have any doubt, then there is no doubt: you should disclose it to the client. But you’re not going to run into trouble just for picking up the phone to make a personal call.