The North Carolina Bar released Proposed 2019 Formal Ethics Opinion 3 in January, addressing questions relating to intimate relationships between opposing counsel. The question presented is whether it is permissible for a prosecutor and a criminal defense attorney to engage in a romantic relationship while serving as opposing counsel in multiple cases, and whether the attorneys are obligated to disclose this relationship. Due to concerns regarding actual or potential conflicts of interest, the Bar opines that it is permissible only under certain limited circumstances.
The North Carolina Rules of Professional Conduct
North Carolina attorneys are governed by the North Carolina Rules of Professional Conduct. As a basis for the proposed opinion, the Bar relies on Rule 1.7, which deals with conflicts of interest relating to an attorney’s current clients, and on Rule 1.4, which deals with communication with the client.
Conflicts of Interest and the Client’s Consent
A lawyer is barred from representing a client when that representation will involve a “concurrent conflict of interest,” which arises when representation may be materially limited by the lawyer’s relationship with any third person. Representation can be materially limited when a lawyer’s personal interest(s) interferes with his or her independent judgment. An attorney is may be barred from representing the client if an actual conflict exists or there is a potential for such a conflict to come into existence.
If facing a conflict, a lawyer may continue representing the client only if the lawyer reasonably believes that he or she will be able to competently and diligently represent the client. Furthermore, the lawyer must disclose the conflict of interest to the client, and the client must give informed consent in writing.
Failure to abide by these requirements can lead to drastic consequences.
Before taking opposing counsel out to Valentine’s Day dinner, carefully review the Rules of Professional Conduct and be sure to get a permission slip from your clients!
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