Formal Opinion 2025-5: Conflicts of Interest Arising out of a Lawyer’s Personal Beliefs
SUMMARY
The Professional Ethics Committee issued an ethics opinion addressing when a lawyer’s personal moral, political, social, or religious beliefs may create a conflict of interest that requires declining or withdrawing from a representation under Rule 1.7(a)(2) of the New York Rules of Professional Conduct. While the profession presumes lawyers can set aside personal beliefs and maintain professional detachment, the opinion acknowledges rare cases where deeply held views may pose a “significant risk” of materially limiting the lawyer’s ability to represent a client competently and diligently. In such cases, the lawyer must assess, both subjectively and objectively, whether their beliefs interfere with their professional judgment. If the risk is significant and cannot be reasonably managed, even with the client’s informed consent, the lawyer must not undertake or withdraw from the representation. However, the opinion emphasizes that such conflicts are uncommon and do not impute to other lawyers in the firm. It reaffirms the core principle that a lawyer’s representation does not equate to an endorsement of the client’s beliefs or conduct and that fair legal representation, even for unpopular clients or causes, remains a foundational duty of the profession
REPORT
THE NEW YORK CITY BAR ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS
FORMAL OPINION 2025-5: CONFLICTS OF INTEREST ARISING OUT OF LAWYER’S PERSONAL BELIEFS; LAWYERS’ PROFESSIONAL DETACHMENT
TOPIC: A personal interest conflict created by a lawyer’s political, social or moral views.
DIGEST: It has long been recognized that a lawyer’s representation of a client is not an endorsement of the client’s political, social, religious or moral beliefs, and that lawyers are able to subordinate personal beliefs, maintain professional detachment and provide objective advice. In certain circumstances, however, a lawyer’s own deeply held political, social, religious or moral beliefs may give rise to a personal conflict of interest under Rule 1.7(a) requiring the lawyer to decline or withdraw from representing the client. Because such a personal conflict is at odds with long-standing norms in the legal profession, the circumstances in which a lawyer or an objective observer would conclude that the lawyer will be professionally incapable of subordinating a strongly held view should be rare.
RULES: 1.2(b); 1.7(a), (b); 1.10(a); 5.1
QUESTION: When may a lawyer be required to decline or withdraw from a representation because of the lawyer’s personal views, notwithstanding the ordinary expectation that lawyers will not allow their own views to adversely affect their representations?
Introduction
Lawyers as advocates have traditionally fulfilled an indispensable role in our adversary system of justice. They represent the powerful and powerless, as well as those who are unpopular, morally repugnant, and often reprehensible, within the bounds of the law and the constraints imposed by the rules on meritorious claims and contentions. Lawyers also serve an important role as counselors, providing legal advice with sufficient detachment from their clients’ interests to remain capable of giving sound and objective counsel concerning their client’s proposed course of conduct.[1]
The New York Rules of Professional Conduct (“Rules”) recognize that lawyers’ personal beliefs and opinions are ordinarily irrelevant to legal representations. In one of the few flat-out statements of principle in the Rules, Rule 1.2(b) states emphatically that a lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”[2] To dispel any conceivable doubt, the rule establishes that lawyers are permitted to represent clients whose views or activities are at odds with the lawyers’ own beliefs, preferences, or opinions. Consequently, one cannot assume that a lawyer shares any particular client’s “political, economic, social or moral views” or personally approves or opposes the client’s activities, mission, or objectives insofar as the lawyer’s representation of the client is concerned.
This statement of principle is derived from the legal profession’s long experience and traditions, including (1) lawyers, as professionals, put aside personal preferences, feelings, and viewpoints to represent clients loyally and competently, and (2) lawyers customarily represent clients without regard to the lawyers’ personal beliefs and opinions and, in fact, are encouraged to do so to ensure that unpopular clients and causes are fairly represented.
As the Restatement notes, “professional detachment is one of the qualities a lawyer brings to each client.”[3] Consequently, even when a lawyer personally has beliefs, opinions, or preferences that lead the lawyer to disapprove of or disagree with a client’s decisions in the representation or general activities, the Rules presume that the lawyer is able to represent the client capably. While lawyers have an obligation of loyalty to their clients, there is no obligation to adopt a personal viewpoint favorable to the client’s interests or desires. Lawyers routinely advise clients how to achieve their objectives within the bounds of the law, without allowing personal qualms about the client, the client’s conduct, or the client’s objectives to impair the quality of the representation, the client-lawyer relationship, or the lawyer’s professional judgment.
Under the Rules, a lawyer may ordinarily choose to decline to represent any prospective client for any reason, including moral, religious, public policy, or other objections to the prospective client or the prospective client’s cause, even if the lawyer is fully capable of providing representation. Lawyers do not have a general ethical obligation to undertake the representation of any prospective client. There are varying views and scholarly commentary on how lawyers should exercise their autonomy to accept or decline representations when they regard the client as morally objectionable or regard the client’s objectives as unjust.[4] These respective philosophical approaches to lawyer discretion in client selection is beyond the scope of this opinion. In the same vein, no person is ever required to overlook a lawyer’s moral, religious, or political views in choosing counsel to represent them.
This Opinion focuses on when Rule 1.7, Conflict of Interest: Current Clients, may require lawyers to decline or withdraw from representations because of the lawyers’ personal views, notwithstanding the ordinary expectation that lawyers will not allow their own views to adversely affect their representations. Some modern authorities—including a Comment to the Rules—acknowledge that some lawyers with strongly held personal views may sometimes be incapable of maintaining the necessary detachment in certain matters, and therefore the representation of a client will be materially limited by the lawyers’ deeply held personal views. This opinion discusses how lawyers should analyze whether their personal views create a concurrent conflict of interest under Rule 1.7(a)(2) and the related implications.
I. When Do Lawyers’ Personal Interests Create Concurrent Conflicts of Interest Requiring the Lawyers to Obtain the Client’s Informed Consent or to Decline a Representation?
A conflict of interest arises under Rule 1.7(a)(2) when “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” The Restatement (Third) of the Law Governing Lawyers explains that “[p]ersonal interests of a lawyer that are inconsistent with those of a client might significantly limit the lawyer’s ability to pursue the client’s interest. Even if a lawyer could subordinate significant personal interests to the interests of clients, it is difficult to determine after the fact whether a lawyer had succeeded in keeping a client’s interests foremost.”[5]
Rule 1.7(a)(2) requires a lawyer to determine whether there is a significant risk that the lawyer’s personal interests will adversely affect the lawyer’s professional judgment. Before undertaking a representation, a lawyer may not foresee with certainty whether the lawyer’s personal interests will materially limit the representation, but the conflict-of-interest rules focus on the risk, not the certainty, that the representation will be materially limited. Significant risk requires “more than a mere possibility of adverse effect.”[6]
Rule 1.7(a)(2) applies if the lawyer subjectively believes that there is a significant risk or if, from an objective perspective, a reasonable lawyer would conclude that there is a significant risk that the representation will be materially limited.[7] In most cases in which a lawyer’s personal interests are in issue, such as when the lawyer has a financial stake in the representation, a liability risk, or a friendship or familial relationship with opposing counsel, the nature and extent of the lawyer’s self-interest is objectively determinable, and a judgment can be made about whether there is a significant risk that the lawyer’s personal interest will materially limit the representation. Therefore, in general, a lawyer who has a potentially relevant personal interest can and should make not only a personal judgment about the potential risk but, if the lawyer concludes that there is not a significant risk, the lawyer should consider whether, from an objective perspective, there is a “significant risk” that the lawyer’s personal interest will materially limit the representation.[8]
Lawyers with personal interest conflicts under Rule 1.7(a)(2) may nevertheless accept or continue a representation if they satisfy the relevant substantive and procedural requirements of Rule 1.7(b).[9] Rule 1.7(b)(1) requires the lawyer to reasonably believe that the lawyer can represent a client competently and diligently despite the significant risk that the conflicting personal interest will adversely affect the lawyer’s professional judgment that the lawyer’s belief be objectively reasonable.[10] That there is a significant risk, viewed subjectively or objectively, does not mean that the lawyer’s judgment will be adversely affected by the lawyer’s self-interest, and the lawyer might reasonably conclude that the representation will not in fact be impaired. If, after full and conscientious consideration, the lawyer subjectively believes that the lawyer will be able to provide competent and diligent representation and that belief is objectively reasonably, then the lawyer may conduct the representation if the lawyer secures the client’s informed consent to the continued representation and confirms that consent in writing pursuant to paragraph (b)(4).[11] If, however, the lawyer does not subjectively believe it is possible to represent the client because of the personal interest conflict, or the lawyer’s belief is not objectively reasonable, or the client does not give informed consent, then the lawyer must decline the representation, or, if the representation is ongoing, withdraw from the representation (or seek the court’s permission to withdraw).
The rules of professional conduct, the Restatement, judicial decisions, and bar associations’ ethics opinions address situations in which the “personal interests” of the lawyer may give rise to a conflict of interest under Rule 1.7(a)(2).[12] Most obviously, a lawyer may have a conflict of interest when the lawyer has a financial or proprietary interest that could be significantly affected by the representation.[13] In some circumstances, the representation may have implications for the lawyer’s criminal liability, malpractice or other civil liability, or disciplinary risk.[14] A lawyer’s personal or familial relationships may also be implicated by a representation in a way that might adversely affect the representation.[15] Some of the recurring situations in which a lawyer’s personal interests may impair the representation of a client are specifically addressed by Rule 1.8,[16] such as when a lawyer represents a client in a business transaction to which the lawyer is a party.[17]
The opinions addressing personal interest conflicts do not ordinarily determine whether, in a given situation, a particular lawyer believes that the representation will or will not be adversely affected by a personal interest. That is a subjective question for the lawyer to resolve.
But opinions do identify recurring situations where, from an objective perspective, lawyers’ personal interests do or do not create a “significant risk” that a representation will be materially limited, and where, if there is such a risk, it may or may not be reasonable for lawyers to believe that they can competently and diligently represent the client.[18] These opinions offer guidance regarding the objective reasonableness of a lawyer’s subjective beliefs.
II. May “Personal Interests” Ever Include Deeply Held Personal Views?
Lawyers may have personal views that are relevant to a client’s representation. On one hand, lawyers may disfavor their clients’ general activities, the particular activities that the lawyer is called on to defend or promote, or particular objectives or decisions of the client in the representation. For example, a criminal defense lawyer may disapprove of crimes for which a client seeks an acquittal; a trust and estates lawyer may disapprove of a client’s intended disposition of assets; a family lawyer may disapprove of a client’s aim to secure sole custody of a child; a transactional lawyer may disapprove of a client’s business activities in general or of the particular transaction that is the subject of the representation; and so on. Someone unfamiliar with the legal profession and its traditions might question in situations whether lawyers will promote their own beliefs at the client’s expense such as by pulling their punches in a litigation, giving overbearing advice to the client, or even subverting a transaction. On the other hand, lawyers may strongly identify with a client’s general objectives or particular cause, presenting the question, from the perspective of the uninitiated, whether lawyers will lack objectivity that is often considered essential to legal representation or whether they will represent clients overzealously, beyond the bounds of the law. Finally, in some situations, lawyers may both favor and disfavor clients’ activities. For example, a civil rights lawyer may strongly support the client’s desire to vindicate a civil rights violation while objecting to the client’s proposed resolution of the action.
For most of the American legal profession’s history, as far as we can determine, there was no suggestion that a lawyer’s personal views relevant to a representation, or, in particular, a lawyer’s personal views opposed to the client’s activities or objectives, might create a conflict of interest. On the contrary, the idea that a conflict of interest might arise out of a lawyer’s personal views is at odds with the historical traditions and presumptions of the American legal profession.[19] It has long been understood that lawyers are bound to have personal beliefs about public policy that are contrary to their clients’ interests. As one noted advocate observed 60 years ago, “If any lawyer consistently engaged in litigation has not on occasion had to take a position on behalf of a client which conflicted with some belief of his own, then he either has a very specialized practice or is short on convictions.”[20]
Like judges, lawyers are expected to cultivate and exercise detachment—an ability to subordinate their views as necessary to conform to professional norms.[21] By way of illustration, government lawyers at the local, state, and federal level have capably served the public through changes of administration that adopt different policies. These lawyers undoubtedly have relevant policy views and preferences but have demonstrated the ability to conduct assigned representations and render reasoned legal advice without allowing their personal views to interfere with or dictate the representation.
In particular, our profession has assumed that lawyers are capable of skillfully representing the most unpopular, indeed despised, clients.[22] One of the illustrations frequently given involved one of the most important moments in our professional history, namely, the able defense provided by John Adams and other lawyers in pre-revolutionary Massachusetts to British soldiers involved in the Boston Massacre, despite the lawyers’ opposition to British rule.[23] Lawyers defending individuals in criminal cases have often disapproved of clients’ past conduct, sometimes finding the conduct morally reprehensible, but these lawyers have been justly confident in their ability to capably represent their clients regardless of the lawyers’ personal beliefs.[24]
As recently as a quarter century ago, a federal district court assumed that a lawyer’s personal views could not possibly create a conflict of interest. In Mendoza Toro v. Gil, 110 F. Supp. 2d 28 (D.P.R. 2000), an assistant U.S. attorney who objected on “moral grounds” to prosecuting trespassers on a U.S. naval base brought an action to enjoin the interim U.S. Attorney from assigning her to handle such prosecutions. She claimed that the assignment presented a “moral conflict” that violated her First Amendment rights. Although the court made clear that its holding concerned the constitutional issue, id. at 37, it also disagreed in dicta with the prosecutor’s argument that she had a conflict of interest under Model Rule 1.7. The court cited Model Rule 1.2(b) for the proposition that the prosecutor’s “work on Vieques cases does not necessarily constitute an endorsement by her of the United States Government’s position on this issue.” Id. at 36. The court also stated that Model Rule 1.7(b) “is intended to address conflicts of pecuniary or professional interests, not a conflict between the attorney’s personal beliefs and the client’s legal position,” citing then-Comment [6] to the Model Rule and a 1988 treatise.[25] Id. at 37.
Notwithstanding traditional confidence in lawyers’ ability as trained professionals to represent clients despite having moral objections to the client’s conduct or cause or other relevant beliefs or preferences, the modern view is that, for some lawyers, their personal views will sometimes present a significant risk that the lawyer’s representation will be materially limited. Deeply held religious, philosophical, political, or public policy views have come to be regarded as “personal interests” that may potentially give rise to a concurrent conflict for some lawyers.[26] On occasion, courts have also assumed that strongly held views can give rise to a conflict of interest that forecloses undertaking a representation.[27]
Even so, lawyers should seek to develop the necessary professional detachment to enable them to represent clients regardless of the lawyer’s relevant personal beliefs, including beliefs in opposition to the client’s views or activities, so long as the lawyer is not being asked to violate the Rules or substantive law in doing so. Implicit in Rule 1.2(b) is not only the factual understanding that lawyers have generally cultivated this capability, but the premise that lawyers should do so.
III. When Does a Lawyer’s Personal View Create a Conflict of Interest?
Personal interests arising out of lawyers’ views are different from other personal interests. Because of lawyers’ obligations to comply with rules of professional conduct, the presumption must be that, from an objective perspective, in a professional representation, a lawyer will subordinate personal views that are at odds with the client.
This presumption means that a lawyer’s deeply held religious, philosophical, political, or public-policy views will rarely create a significant risk of materially limiting a representation. As a federal appeals court observed, “loyalty to a client does not require extinguishment of a lawyer’s deepest convictions,” but only “subordination of a lawyer’s personal interests when acting in a professional capacity.”[28]
The rules presume that a lawyer will consider, recommend, or carry out an appropriate course of action to effectuate the client’s best interest no matter how salient and deeply held the lawyer’s relevant personal views may be. Thus, lawyers’ public pronouncements or their social, religious, and political activities outside their legal representations (e.g., membership in a religious organization, nonprofit organization, political affiliation or contributions, etc.) should never in themselves equate to a “substantial risk” of a material limitation, even if it can be inferred from lawyers’ statements or associations that they deeply hold particular views relevant to the representation.[29]
That said, there may be unusual circumstances in which some lawyers will be professionally incapable of subordinating a strongly held view that is implicated in the representation thereby jeopardizing lawyers’ ability to competently and diligently represent the client. Because this type of conflict is out of the norm, Rule 1.7 necessarily places the burden on the individual lawyer to determine whether there is a significant risk that the lawyer’s strongly held views will materially limit the representation. Lawyers themselves are in the best position to assess the strength and depth of their personal views and what, if any, effect those views are likely to have on the lawyer’s ability to represent a client. Rule 1.7(a)(2) will apply if a lawyer sincerely concludes, in the independent exercise of the lawyer’ professional judgment after fully and conscientiously considering how the lawyer’s views might affect the representation, that there is a “significant risk” of a material limitation despite the lawyer’s commitment to serve the client’s best interests. Likewise, when a lawyer concludes that Rule 1.7(a)(2) applies, Rule 1.7(b) will preclude the lawyer from undertaking or continuing the representation, even with the client’s informed consent, if the lawyer subjectively believes that the lawyer cannot provide competent and diligent representation.
We distinguish situations where, in deciding whether to undertake a representation, a lawyer is able but unwilling to exercise the necessary professional detachment. If the lawyer is indifferent to the obligation to subordinate relevant beliefs or affirmatively intends to give effect to personal beliefs at the expense of the client’s interests and objectives, then the lawyer should not undertake the representation.[30]
We also distinguish situations where, based on a moral, religious, public policy, or other objection, a lawyer is unwilling or disinclined to accept or continue a representation that the lawyer is capable of undertaking.[31] As previously noted, the Rules do not forbid lawyers who are fully capable of providing representation from nevertheless declining a representation in deference to their personal views.[32]
To be clear, unlike situations where a lawyer is unwilling to accept a representation where it is necessary to do so, we think it should be a rare situation where a willing lawyer concludes that the lawyer is incapable of doing so and therefore has a conflict of interest that implicates Rule 1.7(a)(2) and/or Rule 1.7(b). With rare exception, lawyers historically have shown themselves able to represent clients competently and diligently regardless of the lawyers’ personal views, and therefore, from an objective perspective, the Rules presume they will do so.
Given the ordinary presumption that, in their professional representations, lawyers will subordinate personal beliefs that are at odds with the client’s objectives, neither lawyers nor law firms nor other employers are expected to conduct a “conflicts check” to ascertain whether a lawyer undertaking or assigned to a matter has a personal view that might create a significant risk of materially limiting the representation. Again, the determination whether individual lawyers’ personal views are likely to implicate Rule 1.7(a)(2) is left to the discretion of individual lawyers. In fact, only lawyers themselves can make a subjective determination whether a moral, religious, political or other personally held belief overwhelms their otherwise presumed ability to dispassionately represent their clients, and Rule 1.7 squarely makes lawyers the sole arbiters of such subjective decisions.[33] Any individual lawyers who perceive that their individual personal views will probably implicate Rule 1.7(a)(2) should seek to resolve this question before accepting the representation or promptly address the situation if it arises during an ongoing representation. [34]
Likewise, although supervisory lawyers have a general responsibility under Rule 5.1 to assure that subordinate lawyers comply with the rules of professional conduct, including the conflict-of-interest rules, it would ordinarily be improper to inquire whether a subordinate lawyer’s personal beliefs, preferences or opinions would interfere with an assigned representation or an assigned task. Not only is there the ordinary presumption that lawyers will dispassionately exercise their professional judgment, but Rule 1.7 entrusts to the subordinate lawyer alone the responsibility to determine that they cannot put aside personal beliefs. Further, when a subordinate lawyer is known to have made a subjective determination that the lawyer can conduct the assigned work despite opposing personal beliefs, supervising lawyers should not second-guess that determination. Indeed, supervisory lawyers will likely have no fair basis to do so, since in the absence of objective indicia of bias evident to the supervisory lawyers, the subordinate lawyer’s determination would turn on the subordinate lawyer’s evaluation of subjective considerations that others are in no position to assess.[35]
Finally, on the rare occasion when a lawyer in a firm determines that the lawyer has a personal interest conflict based on the lawyer’s views,[36] precluding the lawyer from representing a client,[37] the conflict is not imputed to the lawyer’s firm. Rule 1.10(a) expressly provides that an individual lawyer’s conflict will not be imputed to other lawyers in the firm if “the prohibition is based on a lawyer’s own . . . personal interests within the meaning of Rule 1.7(a)(2), and . . . under the circumstances, a reasonable lawyer would conclude that there is no significant risk that the representation will be materially limited or that the independent professional judgment of the participating lawyers in the firm will be adversely affected.” Comment [3] explains: “[W]here one lawyer in a firm could not provide competent and diligent representation to a given client because of strong political beliefs, but that lawyer will do no work on the matter and the political beliefs of that lawyer are unlikely to materially limit the representation by others in the firm or to adversely affect their independent professional judgment, the firm should not be disqualified.”[38] Therefore, another lawyer in the firm who does not share the conflicted lawyer’s personal views should be free to undertake or take over the representation from the conflicted lawyer.
Conclusion
The historical traditions and presumptions of the American legal profession reflect the understanding that even—and, perhaps, especially—disfavored clients and unpopular causes deserve fair representation. To that end, while in some circumstances, a lawyer’s strongly and deeply held religious, philosophical, political, or public policy views create a conflict of interest such that the lawyer is required under Rule 1.7 to decline or withdraw from representing a client, such circumstances should be the exception. Fair representation is served by lawyers cultivating and exercising detachment so as to provide clients with objective, reasoned advice. It also is served by cultivating the tradition, reflected in Rule 1.2(b), that a lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities. By the same token, no lawyers need endorse a client’s personal beliefs to provide professionally competent legal services to such client.
Footnotes
[1] Am. Bar Ass’n & Ass’n of Am. Law Sch., Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159 (1958).
[2] One purpose of this rule is to avoid discouraging lawyers from representing clients with minority or unpopular views. If a lawyer’s representation constituted an endorsement of the client’s views or activities, then many clients who oppose the government or who are at odds with influential persons or organizations would have difficulty securing counsel, which would impede their right to legal advice or petition the government for redress of grievances. As noted in Comment [5], “Legal representation should not be denied to any person . . . whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities.”
[3] Restatement of the Law Governing Lawyers, sec. 125, comment (e).
[4] See, e.g., W. Bradley Wendel, Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret (2024); Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, Am. B. Found. Res. J. 613, 615 (1986).
[5] Restatement sec. 125, comment b.
[6] Restatement sec. 121, comment (c)(iii).
[7] When lawyers conclude that they do not have a conflict of interest under Rule 1.7(a)(2) because there is not a significant risk that their views will materially limit the representation, they are not obligated to discuss their views with a client, although in some situations, it may be prudent for lawyers to discuss their strongly held views with a client to build trust and confidence.
[8] A lawyer may seek another lawyer’s advice on this question. See Rule 1.6(b)(4) and cmt. [9]. Lawyers may also find guidance in ethics opinions that address recurring situations in which lawyers have “personal interest” conflicts of interest.
[9] A lawyer’s personal interest conflict ordinarily will not present the lawyer with a representation prohibited by law or the assertion of a claim by one client against another client of the lawyer in the same litigation or other proceedings before a tribunal. Therefore, neither Rule 1.7(b)(2) or (b)(3) are ordinarily applicable.
[10] Rule 1.7(b)(1); see also Restatement sec. 121, comment (c)(iv).
[11] Rule 1.0(j) defines “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained to the person the material risks of the proposed course of conduct and reasonably available alternatives.”
[12] See, e.g., Restatement of the Law Governing Lawyers, sec. 125, Comments and Illustrations.
[13] See, e.g., Rule 1.7, Cmt. [10] (“[W]hen a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client.”).
[14] See, e.g., Rule 1.7, Cmt. [10] (“[I]f the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.”).
[15] See, e.g., Rule 1.7, Cmt. [11] (“When lawyers representing different clients in the same matter or in substantially related matters are closely related, 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 professional judgment.”).
[16] Rule 1.8, Current Clients: Specific Conflict of Interest Rules.
[17] Rule 1.8(a).
[18] E.g., N.Y. State Bar Ass’n Ethics Op. 1272 (August 27, 2024); N.Y. State Bar Ass’n Ethics Op. 1196 (June 22, 2020); N.Y. State Bar Ass’n Ethics Op. 1203 (Oct. 8, 2020); N.Y. City Bar Ass’n Formal Op. 2020-05.
[19] E.g., Model Code of Prof’l Responsibility EC 2-27 (1980) (“History is replete with instances of distinguished and sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse.”).
[20] John P. Frank, The Legal Ethics of Louis D. Brandeis, 17 Stan. L. Rev. 683, 692 (1964).
[21] With regard to judges, see, e.g., United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991) (“Our Constitution, of course, does not require a person to surrender his or her religious beliefs upon assumption of judicial office. Courts, however, cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.”).
[22] For example, the “cab rank” rule adopted by the Four Bars (England and Wales, Ireland, Northern Ireland, and Scotland) “is a bedrock obligation for the independent referral Bar. The rule means that barristers cannot discriminate between clients, and that they must take on any case provided it is within their competence and they are available and appropriate remunerated. The cab rank rule promotes access to justice. It means that clients will not be deprived of the advocate of their choice because the client or the client’s cause could be seen as objectionable or unpopular. People with unpopular causes or accused of serious offences do not need the additional challenge of having first to persuade a lawyer to take them on.” Code of Conduct of the Bar of England and Wales, Rule 601 (Bar Standards Bd. 2023).
[23] The future President later wrote: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” John Adams, Diary Entry, March 5, 1773.
[24] In this century, military lawyers and members of the private bar represented Guantanamo detainees, notwithstanding the heinous acts of terrorism that precipitated the government’s action against these men, and indeed, a public official who criticized lawyers for volunteering their services later rightly apologized, recognizing that one can defend alleged terrorists whose alleged conduct was repugnant. See also T. Olson & N. Katyal, We Want Tough Arguments: When Top Advocates Stand Up For Uncle Sam and Detainees, America Gets the Best Law, The Legal Times (Jan. 22, 2007).
[25] The treatise cited by the court has since been updated to address personal interest conflicts in addition to those presented by monetary interests or professional advancement.
[26] Restatement sec. 125, comment c.
[27] In Indiana Planned Parenthood Asso. v. Pearson, 716 F.2d 1127, 1137 (7th Cir. 1983), the court expressed the view that a minor seeking an abortion “who was determined enough to walk into the office of an unknown lawyer would have no assurance that she would not be attempting to retain a counsel who had strongly held religious or moral beliefs about the wrongfulness of abortion. Presumably such an attorney would not accept the representation, thus causing further delay, and we would certainly expect an attorney who held such beliefs not to accept a court appointment.”
[28] Johnston v. Koppes, 850 F.2d 594, 596 (9th Cir. 1988). See also N.Y. City Bar Ass’n Formal Op. 1997-3 (1997) (“The obligation of loyalty to the client applies only to a lawyer in the discharge of professional duties and implies no obligation to adopt a personal viewpoint favorable to the interests or desires of the client. While a lawyer must act always with circumspection in order that the lawyer’s conduct will not adversely affect the rights of a client in a matter the lawyer is then handling, the lawyer may take positions on public issues and espouse legal reforms favored by the lawyer without regard to the individual views of any client.”).
[29] When the lawyer has publicly expressed personal views and the lawyer believes those views will not create a significant risk that the representation of a client will be materially limited and that assessment is objectively reasonable, it would be prudent, and may be necessary, for the lawyer to disclose to the client the fact that these statements exist and may become available to opposing counsel, the tribunal or others interested in the matter.
[30] See, e.g., Malina L. Seymore, Ethical Blind Spots in Adoption Lawyering, 54 U. Rich. L. Rev. 461, 505-08 (2020) (discussing People v. Ritland, 327 P.3d 914, 916, 921 (Colo. 2014), and In re J.M.P., 528 So. 2d 1002 (La. 1988)); see also Commonwealth v. Dew, 210 N.E.3d 904 (Mass. 2023) (finding that a criminal defense lawyer who shared “numerous racist and bigoted public postings” on social media allowed his inherent bigotry against persons of the client’s faith and race to affect the representation, including by twice “demand[ing] that the defendant remove his religious garb”).
[31] In a series of opinions, the Tennessee Supreme Court’s Board of Professional Responsibility addressed situations where lawyers were unwilling to accept or continue a representation that was at odds with their moral or religious beliefs. In Tenn. Bd. Pro. Resp. Formal Op. 84-F-73 (1984), the Board considered whether a criminal defense lawyer may withdraw from representing a capital defendant who, if found guilty, did not want to oppose the imposition of the death penalty. The Board found that the lawyer could move to withdraw from the representation to avoid contravening the lawyer’s moral beliefs, because “[c]ounsel is not ethically required to accept the moral and legal choices of the client and has no ethical obligation, in this instance, to advocate those choices on behalf of the client.” However, if the lawyer continued the defense, “[c]ounsel’s moral beliefs and usually acceptable ethical standards and duties must yield to the moral beliefs and legal rights of the defendant.” Addressing a similar situation in Tenn. Bd. Pro. Resp. Formal Op. 99-F-73a (1999), the Board concluded that defense counsel was not obligated to seek to withdraw when the capital defendant instructed the lawyer not to oppose imposition of the death penalty. Quoting an earlier state supreme court decision, the Board assumed that the lawyer could continue the representation notwithstanding “the professional, personal, and moral conflicts that lawyers encounter when representing a defendant who chooses to forego the use of mitigating evidence.” In Tenn. Bd. Pro. Resp. Formal Op. 96-F-140 (1996), the Board considered whether a lawyer could withdraw from a court-appointed representation of a minor seeking an abortion. Among the asserted grounds for withdrawal were that the lawyer’s religious opposition to abortion was so compelling that “counsel fears his own personal interests will subject him to conflicting interests and impair his independent professional judgment.” Although the Board found that the lawyer could assert to a judge that fervently held religious and moral beliefs provided good cause to withdraw from the representation, the Board was highly skeptical that this assertion would prevail. The Board noted that then an Ethical Consideration of the state’s code of professional responsibility exhorted lawyers that, absent a compelling reason, they should not to seek to withdraw from representing clients who were unable to retain counsel, and that compelling reasons “do not include such factors as . . . the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case.”
[32] This Opinion does not address whether employment obligations or other obligations outside those established by the Rules may require lawyers to conduct work that the rules allow them to conduct.
[33] In this regard, Rule 1.7 preserves a lawyer’s discretion to exercise independent professional judgment to determine whether a personal conflict exists and what actions it may require. As with other such grants of discretion, lawyers always retain their discretion under Rule 1.7 to make such determinations for themselves. See N.Y. City Bar Ass’n Formal Op. 2025-4, Ethical Issues Arising When Attorneys Contractually Limit Their Discretion. Of course, this is not binding on a client who subjectively believes that a lawyer’s personal views will hinder the representation. Clients are not bound by the Rules and generally may hire and fire lawyers at will, for any cause or none.
[34] Any lawyer who is uncertain whether the lawyer can exercise the appropriate detached judgment may consult with a trusted advisor to secure confidential legal advice pursuant to Rule 1.6(b)(4).
[35] When a subordinate lawyer raises a personal conflict concern to a supervising lawyer, the supervising lawyer may opt to reassign the matter to another lawyer without such a conflict or arrange to limit the scope of the work performed by the conflicted lawyer to aspects of the representation that do not implicate the conflict concern, or, where the Rule permits, seek the client’s informed consent.
[36] See Rule 1.0(h), defining “firm” for purposes of Rule 1.10(a).
[37] In the case of a subordinate lawyer on a team of lawyers, it may be possible to limit the scope of the lawyer’s work to avoid the significant risk that the lawyer’s representation will be materially limited.
[38] Rule 1.10, cmt. [3]. See also Restatement of the Law Governing Lawyers § 125, cmt. g (“[O]ne affiliated lawyer’s personal interests that produce personal prohibition disable an affiliated lawyer from representing the same client only when there is a significant risk that the interests of the first lawyer would materially and adversely impair the second lawyer’s representation.”); N.J. Ethics Opinion 743 (2022) (no imputation of “personal interest” conflicts based on personal beliefs).