Office of Bar Counsel, 1220 WYBJ, Vol. 43 No. 6. 10

• Author: Melinda S. McCorkle, Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming
• Position: Vol. 43 6 Pg. 10

Office of Bar Counsel

No. Vol. 43 No. 6 Pg. 10

Wyoming Bar Journal

December, 2020

The Unique Challenges of Personal Relationships with Opposing Counsel in a Sparsely Populated State

Melinda S. McCorkle, Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming

With approximately 3,200 licensed attorneys, Wyoming has the fewest attorneys of any state. The population shrinks further when you consider that only 1,700 or so attorneys live within the state of Wyoming. How, then, does an attorney handle the inevitable certainty that she will have a case (or dozens of cases) in which she has a personal relationship with opposing counsel?

W.R.Prof.Cond. 1.7 governs conflicts of interest involving current clients.^[1] While we often consider Rule 1.7 when contemplating whether two clients with adverse interests may be represented by the same firm, a lawyer’s own personal interest may also cause a concurrent conflict of interest to exist. See W.R.Prof.Cond. 1.7(a) (2) (“A concurrent conflict of interest exists if… there is a significant risk that the representation of one or more clients will be materially limited by…a personal interest of the lawyer.”) In such cases, the lawyer is prohibited from representing the client unless the conflict is: (a) consentable (waivable); (b) will not materially impair the attorney’s representation of the client; and (c) the client provides informed consent, confirmed in writing.^[2] See W.R.Prof.Cond. 1.7(b) and cmt. [2]. While numerous types of personal interests can create a conflict of interest, this article focuses on personal relationships with opposing counsel.

The number of possible personal relationships with opposing counsel, particularly in Wyoming, is seemingly endless. Marriage and blood relatives are the first that come to mind and are, in fact, the only relationships expressly addressed in the comments to Rule 1.7. The rationale behind the prohibition is stated in Comment 11: “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.” This rationale clearly applies to other types of relationships with opposing counsel, such as cohabitating couples, individuals in various...