LEGAL ETHICS OPINION #1697    CONFLICT OF INTEREST; REPRESENTATION
                              OF CLIENT WHEN ATTORNEY IN SAME FIRM
                              IS FRIEND OF CLIENT AND CLIENT'S
                              FAMILY


You have presented a hypothetical situation in which Attorney A and
Attorney B are partners in a law firm.  Attorney B has been a
friend of X for a number of years and has been acquainted with X's
family for some time through various social occasions.  Attorney A,
Attorney B and their law firm have never provided any legal advice
or services to X or her family.  

Recently, X's sister became involved in a domestic relations
altercation with her husband, resulting in X's sister taking out
assault warrants against her husband.  Attorney A, unaware of
Attorney B's friendship with X, accepted a retainer from the
husband (Client) and agreed to represent Client.  On the hearing
date for Client's criminal case, the Commonwealth's Attorney
objected to A's representation of Client, and moved to disqualify
A on grounds of a conflict of interest as a result of the foregoing
relationships.  Attorney A also realized, at that time, the he too
was acquainted with X's family, through prior social or public
settings.  

Although believing that no conflict of interest exists, Attorney A
asked Client if he could refund the fees and withdraw as counsel. 
Client refuses to accept the refund and insists that A continue to
represent him.  X's family maintains that, because of B's
friendship with X, as well as their acquaintance with both
attorneys, A and B, the entire law office of Attorneys A and B are
disqualified from representing Client in any matters adverse to X's
sister.  X also claims that X has confided in B about family
matters, including X's sister's relationship with Client.  Finally,
X asserts that there may be an "appearance of a conflict" because
X works for a company in which B's father has an interest.  B does
not deny that she has been a close friend of X for a few years and
has discussed matters concerning X's family over that period of
time, including Client's marriage to X's sister.  However, B does
not consider any of her conversations with X or X's family to be
privileged or confidential.  Notwithstanding full disclosure of the
foregoing to Client, Client still insists that A represent him.

You have asked the committee to render an advisory opinion
addressing the following issues:

     1.  Does A have a conflict of interest in representing
     Client in any matters (i.e., defense of Client on assault
     charges, divorce and custody proceedings, etc.) adverse
     to X's sister?

     2.  Regardless of whether a conflict exists, may A
     withdraw from representing Client over Client's
     objection?

The controlling disciplinary rules are DR 4-101 which requires an
attorney to protect client confidences and secrets; DR 5-101(A)
which prohibits an attorney from accepting employment if the
exercise of his professional judgment may be affected by the
attorney's own financial, business, property or personal interests
except with consent of the client; DR 5-105(D) which prohibits an
attorney from representing a client adverse to a former client in
substantially related matters unless the former client consents; DR
5-105(E) which imputes a conflict of interest of an attorney to all
other attorneys in the same law firm and DR 2-108(B)(1) which
permits an attorney to withdraw from a representation if there is
no material prejudice to the client.

While some of the disciplinary rules in the Code of Professional
Responsibility apply regardless of whether an attorney acts in a
professional or personal capacity, the ethical duties imposed under
Canons 4 and 5 presuppose the existence of an attorney-client
relationship.  An agreement to employ an attorney may be expressed
or implied, but there must be some indication that the advice and
assistance of an attorney was sought and received in order to
create an attorney-client relationship.  Nicholson v. Shockey, 192
Va. 270, 277, 64 S.E.2d 813, 817 (1951).  The committee has
previously opined that the attorney-client relationship is a
contractual one which is entered into after a consultation with a
lawyer and mutual agreement as to its existence and scope.  Legal
Ethics Opinion 1193.  On occasion, the committee has recognized
that there may be particular circumstances where a person may have
an expectation of confidentiality in their consultations with a
lawyer even though the attorney does not undertake to represent
that person.  See, Legal Ethics Opinions 1453, 1456 and 1638.

Under the facts you present, there is no indication that X or X's
family sought or received legal advice from either B or A.  Nor
does it appear that any of X's discussions with B occurred in B's
professional capacity as a lawyer, to which an expectation of
confidentiality might attach, as opposed to conversations between
friends.  Therefore, the committee is of the opinion that neither
B's relationship with X, nor the social contacts X's family had
with A or B creates a conflict of interest under DR 5-101(D).  In
addition, any information A or B may have obtained about X's
sister's marital problems with Client was acquired under
circumstances, in the committee's view, outside the scope of DR 4-
101.  Therefore, the committee believes that it would not be
improper for A to continue representing Client in any matters
adverse to X's sister.

As to the second issue, if A can withdraw from the representation
of Client without material prejudice to Client, it would not be
improper for A to terminate the attorney-client relationship.  DR
2-108(B)(1).  If, however, the matter is pending in court, A would
need to obtain leave of court before A could withdraw from the
representation.

[DR 2-108(B)(1); DR 4-101; DR 5-101(A); DR 5-105(D),(E); LEOS 1193,
1453, 1456, 1638; Nicholson v. Shockey, 192 Va. 270, 277, 64 S.E.2d
813, 817 (1951)]

Committee Opinion
June 24, 1997