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ETHICS OPINION 640-1974 CONFLICT OF INTEREST: RECOMMENDING COUNSEL TO OTHER PARTY
NUMBER 640
QUESTION.
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May the attorney for one of the parties to a proposed prenuptial agreement, at the request of the other party and with his own client’s consent, properly recommend an attorney to the other party if the two attorneys are friends and law school classmates, the inquiring attorney had previously referred matrimonial matters of his own clients to his friend, who had expertise in that area, and the inquiring attorney, who had an accounting background, had for many years prepared his friend’s income tax returns on an annual basis? The inquiring attorney would have no interest, financial or otherwise, in the professional services rendered by the other attorney in the matter of the prenuptial agreement.
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Where a prospective purchaser of a business requests seller’s attorney to recommend an attorney to represent him on the sale, is there any impropriety on the part of the seller’s attorney in referring him to a friend, whom he first met as an adversary in a lawsuit four years before, but with whom he has had no business or professional relations, provided both seller and purchaser are informed of the friendship and both consent to the representation?
ANSWER.
In answer to the first question the inquiring attorney may recommend his friend to the other party as counsel provided he believes that neither attorney will be influenced in any way in advising his client by the relationship between the two attorneys. He must fully disclose the facts and circumstances of his friendship and past transactions with the other attorney both to his client and the second party, so that they may judge their possible effect on the exercise of each attorney’s independent professional judgment on behalf of his client. Can. 5; DR 5-105(C); EC 5-21, 5-22. Such disclosure will obviate any appearance of impropriety on the part of either attorney. Can. 9.
The factual situation set out in the second question makes it clear that the purchaser and seller have already been fully informed of the friendship between the attorneys, and therefore there is no impropriety in the recommendation.
In any case, should either attorney at any time feel that his independent judgment may be influenced by his friendship with the other, he should withdraw from the employment. DR 5-105(8).
November 18, 1974.