Ohio Board Advisory Opinion Op. 22-06

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2022-06
Issued June 10, 2022
Withdraws Adv. Op. 1993-7

Conflicts Arising out of Personal Relationships with Opposing Counsel!

SYLLABUS: Spouses may not represent opposing parties without informed, written
consent of the affected clients. When a prosecutor-spouse and criminal defense lawyer-
spouse are practicing in the same jurisdiction, the best practice is for the prosecutor’s
office to assign another prosecuting attorney to the case and screen the prosecutor-spouse

from any matter involving his or her spouse.

Other lawyers in the lawyer-spouse’s law firm may represent criminal defendants
without disclosure and consent, so long as the lawyer does not have a close personal
relationship with the specific prosecutor assigned to the case. The lawyer-spouse may
represent criminal defendants without disclosure and consent so long as the lawyer-
spouse does not have a close personal relationship with the specific prosecutor assigned
to the case. If a lawyer shares a close personal relationship with the prosecutor assigned,

the lawyer must obtain informed written consent from the client.

Domestic partners, individuals in an intimate relationship, close friends, and
roommates have the same duties as those in spousal relationships in evaluating potential
conflicts of interest. Lawyers who are domestic partners or in intimate relationships are
advised to adhere to the client consent and disclosure obligations applicable to married
lawyers. Lawyers in other relationships should consider the characteristics present in the

relationship and exercise professional judgment regarding client disclosure and consent.

At a minimum, a lawyer seeking client consent to a conflict should disclose any
shared financial or personal interests, explain the fact that there is a presumption of
confidences and loyalty between those in a personal relationship, and explain the risks of

breach of the duty to loyalty and confidentiality based on that relationship. A written

1 Though this advisory opinion is specifically directed at criminal defense lawyers and prosecutors, the
Board recommends application to other representational situations where opposing counsel have
significant personal relationships.

disclosure should contain the above information, the precise nature of the relationship

giving rise to the to the conflict, and alternatives to the representation.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

e> Ohio Board of Professional Conduct

65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
Hon. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2022-06
Issued June 10, 2022
Withdraws Adv. Op. 1993-7

Conflicts Arising out of Personal Relationships with Opposing Counsel!

SYLLABUS: Spouses may not represent opposing parties without informed, written
consent of the affected clients. When a prosecutor-spouse and criminal defense lawyer-
spouse are practicing in the same jurisdiction, the best practice is for the prosecutor’s
office to assign another prosecuting attorney to the case and screen the prosecutor-spouse

from any matter involving his or her spouse.

Other lawyers in the lawyer-spouse’s law firm may represent criminal defendants
without disclosure and consent, so long as the lawyer does not have a close personal
relationship with the specific prosecutor assigned to the case. The lawyer-spouse may
represent criminal defendants without disclosure and consent so long as the lawyer-
spouse does not have a close personal relationship with the specific prosecutor assigned
to the case. If a lawyer shares a close personal relationship with the prosecutor assigned,

the lawyer must obtain informed written consent from the client.

Domestic partners, individuals in an intimate relationship, close friends, and
roommates have the same duties as those in spousal relationships in evaluating potential
conflicts of interest. Lawyers who are domestic partners or in intimate relationships are

advised to adhere to the client consent and disclosure obligations applicable to married

1 Though this advisory opinion is specifically directed at criminal defense lawyers and prosecutors, the
Board recommends application to other representational situations where opposing counsel have
significant personal relationships.

Op. 2022-06 2

lawyers. Lawyers in other relationships should consider the characteristics present in the

relationship and exercise professional judgment regarding client disclosure and consent.

At a minimum, a lawyer seeking client consent to a conflict should disclose any

shared financial or personal interests, explain the fact that there is a presumption of

confidences and loyalty between those in a personal relationship, and explain the risks of

breach of the duty to loyalty and confidentiality based on that relationship. A written

disclosure should contain the above information, the precise nature of the relationship

giving rise to the to the conflict, and alternatives to the representation.

QUESTIONS PRESENTED:

1)

2)

3)

4)

5)

6)

7)

May a prosecutor and a criminal defense lawyer who are spouses represent

opposing parties in the same matter or in substantially related matters?

May other lawyers in the criminal defense lawyer’s firm represent defendants
who are prosecuted by a firm member’s spouse or other lawyers in the

prosecutor’s office?

May a lawyer married to a prosecutor represent criminal defendants

prosecuted by other lawyers in the same prosecutor’s office?

Do domestic partners, individuals living together in an intimate relationship,
close friends, or roommates share the same duties as those in spousal

relationships?

If disclosure is required when opposing parties are living together, must the
lawyer disclose the “spousal relationship” or is a more general disclosure of

“household member” sufficient?
What implications must be discussed with the client?

What information should be contained in any written waiver signed by a

client?

APPLICABLE RULES: Prof.Cond.R. 1.7, 1.9, 1.10, 1.11.

OPINION: The requesting lawyer is the county public defender in a county that handles

thousands of criminal cases per year. The county public defender’s office has almost fifty

Op. 2022-06 3

lawyers on staff. Some of the lawyers on staff may have personal relationships with

lawyers in the prosecutor’s office.
Question 1: Opposing Counsel Spouses

A conflict of interest exists when there is a substantial risk that a lawyer’s ability
to consider, recommend, or carry out an appropriate course of action for a client will be
materially limited by the lawyer’s responsibilities to a third person or by the lawyer's
own personal interest. Prof.Cond.R. 1.7(a)(2). The Rules of Professional Conduct address
conflicts arising when opposing counsel are closely related by blood or marriage in
Prof.Cond.R. 1.7, cmt. [21]:

When lawyers who are closely related by blood or marriage represent
different clients in the same matter or in substantially related matters, there
may be a substantial 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 the related lawyer
represents another party, unless each client gives informed, written

consent.

The ethical concerns regarding spouses or those involved in intimate
personal relationships representing opposing parties arise from the nature of the
underlying relationship. Inherent characteristics of an intimate personal or
spousal relationship may include the presumption of shared confidences, feelings
of loyalty to the significant other, and the potential for shared financial, business,

property, or personal interests. Thus, spouses may not represent opposing parties

Op. 2022-06 4

in the same or a substantially related matter without obtaining informed written

consent from their respective clients.’
Question 2: Other Lawyers in Criminal Defense Law Firm

The Rules of Professional Conduct address imputation of personal conflicts to
members of a firm in Prof.Cond.R. 1.10 and the comments to Prof.Cond.R. 1.7.
Prof.Cond.R. 1.10(a) indicates that when “the prohibition 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” then the conflict is not
imputed to other members of the firm. Comment [21] to Rule 1.7 further clarifies that
“t]he disqualification arising from a close family relationship is personal and ordinarily

is not imputed to members of firms with whom the lawyers are associated.”

The concerns about the characteristics of intimate personal or spousal
relationships referenced above are typically absent when other law firm members
represent criminal defendants prosecuted by a firm member’s spouse or other
prosecutors in the prosecutor’s office. Thus, any personal prohibition of the lawyer-
spouse from representing a criminal defendant need not be rigidly imputed to other
members of the law firm. The question then arises as to whether disclosure and consent

is necessary.

Firm members must assess whether their own personal relationship with their
colleague and the colleague’s prosecutor-spouse presents a significant risk of materially
limiting the representation of the client. The mere possibility of subsequent harm from a
potential material limitation conflict, by itself, does not require disclosure and consent.
Prof.Cond.R. 1.7, cmt. [14]. Adv. Op. 2016-12. The lawyer should consider the nature
and degree of their own relationship with the colleague and the colleague’s spouse. A

potential material limitation conflict, aside from the conflicts of the spouses, could exist

2 The Board has previously cautioned government employees from seeking consent to representation
burdened by a conflict. Adv. Op. 2019-05. Rather than seek written consent to representation where a
prosecutor’s spouse is opposing counsel, the best practice is for the prosecutor’s office to assign a different

prosecuting attorney to the matter pursuant to Prof.Cond.R. 1.11(d), cmt. [2].

Op. 2022-06 5

depending on the degree of friendship the colleagues share.* If the firm member does
not share a close personal friendship with the prosecutor-spouse and it is unlikely that
the representation will be materially limited, then consent and disclosure is not necessary.
If the firm member has such a close personal friendship with the prosecutor-spouse that
his or her loyalty would inhibit the ability to represent the criminal defendant, then the
law firm member should not take on the representation without disclosure of the
relationship and consent of his or her client pursuant to Prof.Cond.R. 1.7(b). The Board
recommends appropriate and timely screening of the lawyer-spouse from any matters in

which the prosecutor-spouse is involved.
Question 3: Criminal Defense Lawyer Spouse and Other Prosecutors

To determine if a lawyer-spouse may represent a client prosecuted by other
prosecutors in his or her spouse’s office, the lawyer must first look to see if the spouse’s
conflicts are imputed to other prosecutors in the office. As referenced above, comment
[21] to Prof.Cond.R. 1.7 indicates that personal conflicts due to close family relationships
are not imputed to other members of an office. See Prof.Cond.R. 1.7, cmt. [21]. Further,
Prof.Cond.R. 1.11, cmt. [2] reads, “[b]ecause of the special problems raised by imputation
within a government agency, division (d) does not impute the conflicts of a lawyer
currently serving as an officer or employee of the government to other associated
government officers or employees, although ordinarily it will be prudent to screen such
lawyers.” Therefore, the prosecutor-spouse’s conflicts are not imputed to the other
prosecutors in his or her office. For the same reasons indicated in question two, the Board
concludes that the ethical concerns related to spousal representation are absent in this
instance as well. Consequently, a lawyer married to a prosecutor may represent criminal

defendants prosecuted by other lawyers in the prosecutor-spouse’s office.

However, the lawyer-spouse should also assess whether his or her own personal
relationship with the specific prosecutor(s) assigned to each case presents a significant
risk of materially limiting the representation of the client, aside from the conflict personal
to his or her spouse. The mere possibility of subsequent harm from a potential material

limitation conflict, by itself, does not require disclosure and consent. Prof.Cond.R. 1.7,

3 Additional discussion regarding whether a friendship is likely to raise conflicts between opposing counsel
can be found in response to question four.

Op. 2022-06 6

cmt. [14]. Adv. Op. 2016-12. The lawyer should consider the nature and degree of his or
her own friendship with the prosecutor-spouse’s colleague(s).* If the criminal defense
lawyer does not share a close personal friendship with the prosecutor colleague(s) of his
or her spouse, then disclosure and consent is unnecessary. If the criminal defense lawyer
has such a close personal friendship with his or her spouse’s colleague(s) assigned to case
that his or her loyalty would inhibit the ability to represent the criminal defendant, then
the lawyer should not take on the representation without disclosure to and consent of his
or her client pursuant to Prof.Cond.R. 1.7(b). The Board recommends appropriate and
timely screening of the prosecutor-spouse from any matters in which his or her spouse is

representing a criminal defendant.
Question 4: Duties of Lawyers Regarding Other Personal Relationships

The Rules of Professional Conduct do not address personal relationships beyond
those of lawyers related by blood or marriage. The Board recognizes that other personal
relationships may also create conflicts of interest depending on the nature and degree of
the relationship. The American Bar Association has identified at least three different
types of relationships that may implicate conflicts of interest. Those relationships are (1)
intimate relationships, (2) friendships, and (3) acquaintances. ABA Formal Op. 20-494
(2020). The Board finds that ABA Formal Op. 20-494 provides appropriate guidance in
identifying characteristics of these types of relationships and applying them to potential

conflict situations.
Intimate Relationships

The Board concludes that lawyers who (1) cohabitate in an intimate relationship,
(2) are classified as domestic partners, (3) are engaged to be married, or (4) are in an
exclusive intimate relationship, regardless of their living situation, should be treated in
the same manner as married couples for conflicts purposes. ABA Formal Op. 20-494
(2020). See also N.C. State Bar Formal Op. 2019-3 (2019). There is a substantial risk in
these situations that the lawyer’ s conduct will be materially limited by his or her duties
to the opposing counsel. The inherent characteristics of the spousal relationship are also

present in intimate personal relationships. These types of relationships lend themselves

4a

Op. 2022-06 7

to potential conflicts of interest for the reasons described above in question one. A client
should be informed of these relationships and potential conflicts in order to allow the
client to make an informed decision about the representation. See Prof.Cond.R. 1.4. If the
client wishes to continue the representation, informed written consent must be obtained.
Prof.Cond.R. 1.7(b).

Friendships

Thoughtful analysis of the nature of a friendship is required in order to determine
if a conflict of interest exists and if it must be disclosed to an affected client. A lawyer
faced with opposing counsel whom he or she considers a friend must exercise
professional judgment in determining the action to take. The Board offers the following
factors to consider when analyzing the nature of the relationship: (1) the degree of mutual
affinity for one another, (2) the length of the relationship, (3) whether the lawyer regularly
socializes with opposing counsel, and (4) the frequency of contact with opposing counsel.
See ABA Formal Op. 20-494 (2020).

Engaging in some, if not all, of the following activities suggests the existence of a
close friendship: (1) regularly socializing outside of professional activities, (2) spending
time at each other’s homes, (3) coordinating activities with each other’s spouses and
children, (4) exchanging gifts at holidays or special occasions, (5) vacationing together, or
(6) sharing confidences or intimate details of their lives. Id. Conversely, one may consider
opposing counsel a friend, but not a close friend, because of their past relationship in
college, law school, or while working together after many years. Despite this shared past,
they may only stay in touch through occasional correspondence or periodically meet up
when their schedules permit but do not go out of their way to regularly see one another.

Id. These types of friendships do not create a close relationship.

There is a substantial risk that a lawyer may forgo taking appropriate action on
behalf of a client when opposing counsel is a close friend. For example, the lawyer may
forgo filing a motion for sanctions out of loyalty to the close friend. Id. When a close
friend is opposing counsel, the lawyer must disclose the relationship and obtain informed
written consent from the client. When the lawyer regards opposing counsel as a friend
but interacts with him or her on a limited basis, the lawyer may exercise his or her

professional judgment as to whether to disclose the relationship and obtain consent.

Op. 2022-06 8

Typically, in this situation, the lawyer will not be required to disclose the relationship
and obtain informed written consent to the representation. Id. The lawyer may however

choose to disclose the relationship to maintain a positive relationship with the client. Id.
Acquaintances

An acquaintance may be distinguished from a friend when there is little mutual
affinity and attachment between one another. See id. The lawyers may greet each other
cordially and engage in polite but relatively superficial conversation. Id. The following
may be characteristics of this type of relationship, (1) attending the same professional
events such as bar association meetings, committee meetings, board meetings, or CLE
presentations, or (2) interacting cordially with one another in shared community spaces
such as places of worship, businesses, school events, sporting events, neighborhood
events, country clubs, or gyms. Id. Because there is little risk of the representation being
materially limited in this instance, lawyers who are acquaintances do not need to disclose
the relationship to clients. Id. The lawyers may however choose to disclose the

relationship to maintain a positive relationship with the client. Id.
Roommates

Application of conflict of interest rules is challenging when considering lawyers
who are roommates but do not share an intimate relationship. “Within the framework of
[the] rules * * * many difficult issues of professional discretion can arise.” Preamble [9].
The relationship of lawyer-roommates could resemble a close friendship, a friendship, or
one more akin to that of an acquaintance. Roommate relationships also may be short-
term or borne purely out of financial convenience. As indicated above, the mere
possibility of subsequent harm from a potential material limitation conflict does not
require disclosure and consent. Prof.Cond.R. 1.7, cmt. [14]. Adv. Op. 2016-12.

Lawyer-roommates are advised to use the criteria referenced above describing
close friendships, friendships, and acquaintances to guide their professional judgment as
to whether to disclose and seek consent from an affected client. In exercising professional
judgment, lawyers must always be mindful of the impact to a client’s underlying matter
if a decision is made to proceed without disclosing the relationship to the affected clients.
A client whose lawyer is the roommate of opposing counsel is likely to have questions

and concerns about whether the relationship will compromise the lawyer’s duty of

Op. 2022-06 9

loyalty to the client. This concern may be heightened if the information is not disclosed
by the lawyer and later discovered by the client. The client’s concern, even if unfounded,
may lead to an unnecessary appeal resulting in delay and potentially greater expense for
the client. While not strictly required under the rules, lawyers may choose to disclose the
relationship to maintain a positive relationship with the client. In these situations, the

Board advises that lawyers err on the side of caution.

Regardless of the lawyer’s final determination regarding disclosure, lawyers
living together must take appropriate steps to ensure client confidentiality. Examples of
such steps include password protecting devices, taking phone calls in a location where
they cannot be overheard, and using care to secure any written materials brought into a

common living arrangement.
Question 5: Disclosure of Relationship

When disclosing to a client a personal relationship with opposing counsel that may
impact the representation, the disclosure should reflect an accurate description of the
relationship. First, a lawyer may not make or use a false or misleading communication
about the lawyer or the lawyer’s services. Prof.Cond.R. 7.1. “A truthful statement is
misleading if it omits a fact necessary to make the lawyer’s communication considered as
a whole not materially misleading.” Id. at cmt. [2]. Second, a lawyer must communicate
adequate information to allow the client to make informed decisions about the
representation. Prof.Cond.R. 1.4. When considering if a conflict of interest is present and
if the client is comfortable consenting to representation, the nature of the relationship
between opposing counsel is a material fact. Therefore, when a personal relationship is
required to be revealed, an accurate description of that relationship is necessary. A
general statement that opposing counsel is a “household member” of the lawyer may be
misleading because it lacks specificity and omits material facts. This may be especially
true if opposing counsel is the spouse or intimate partner of the lawyer. It may be that a
client would be comfortable waiving a conflict if opposing counsel is simply a roommate,
which the description of “household member” may infer, but not comfortable consenting

to a conflict if opposing counsel is a spouse or an intimate partner.

Op. 2022-06 10

Question 6: Implications to be Discussed

Depending on the type of personal relationship, there may be several implications
related to a conflict of interest that should be discussed with a client before obtaining
consent to representation. First, in a spousal or intimate relationship there is a hybrid of
interests, such as financial, business, property, and personal interests that reasonably
might affect the exercise of a lawyer’s independent judgment on behalf of a client.
Second, there is a presumption of shared confidences between spouses and those in
intimate relationships that creates a substantial risk of inadvertent breach of the duty of
loyalty to the client, including the duty to preserve client confidences and information
related to the representation. Finally, a client should be advised that the lawyer may feel
a duty of loyalty to his or her spouse, an intimate partner, or even a close friend that may
impede the lawyer’s ability to represent the client. For example, the lawyer may refrain
from making certain arguments if related to opposing counsel’s performance in
prosecution of the matter or forgo filing a motion for sanctions based on loyalty to the
individual. This list of potential implications which should be discussed is not exhaustive

as specific factual circumstances unique to each situation may be present.
Question 7: Informed Consent

Informed consent requires that a lawyer obtaining consent to representation
burdened by a conflict communicate adequate information and explanation about the
material risks of and reasonably available alternatives to the proposed representation.
See Prof.Cond.R. 1.0(f). At a minimum, in this context, the information contained in a
written conflict waiver should include the precise nature of the relationship that
prompted the disclosure, any material risks giving rise to the conflict, such as those
described above in question six, and any reasonable alternatives to the representation,

such as assignment of another lawyer in the office or obtaining other counsel altogether.