Originally posted on 10/15/2019 (reformatted).

At 32, I found myself going through a divorce. After finally entering into an agreement for canine custody, the divorce was final and I suddenly found myself reentering the dating world. Dating your 30s is an entirely different animal than in your 20s. You are set in your ways, have a good amount of life experience, and have collected some “baggage” along the way. I’ve had some pretty hilarious dating experiences. Nonetheless, I navigated fairly well with the support of my friends, family, and of course, my dog.  But then I had a dating problem that landed right in my office.

Immediately, I went to my partner, Brandon, and closing his office door announcing that I needed to chat. Brandon and I joined the firm at about the same time and became partners of the firm a couple years apart. Quickly, he became one of my closest confidants and source of advice in the firm. Usually, he just calms me down when I am too heated over some legal issue. This was a new one for him.

I explained that another lawyer asked me to go on a date. I was not quite sure how to handle it. Brandon got this smirk on his face and eagerly asked, “Who is it?” Our Bar has approximately 130 attorneys. I could hardly blame him for the curiosity.

We pulled the Rules of Professional Conduct. The only relationships the rules address are “Family Relationships Between Lawyers” under MRPC 1.8(i), which states as follows:

“A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.”

When the lawyers are in different firms, the conflict concerning familial relationships is personal and not imputed.

Formal Opinion R-3, July 21, 1989 addresses lawyers cohabitating. When lawyers cohabitate, they likely have a degree of intimacy, confidentiality, and shared interest which creates the potential for conflict of interest…”. Thus, when in a cohabitating relationship lawyers must follow MCRPC 1.8(i) and disclose the relationship to the clients before beginning or continuing representation.

There are clear rules for marriage and cohabitating, but how about dating? What is datinganyway? A first date, the ninth date, leaving a toothbrush, moving in? Formal Opinion R-3, July 21, 1989 points out the complexity, the “degree of confidentiality and shared interest in a dating relationship can vary greatly.” It advises erring on the side of caution and disclosing the relationship or declining representation if the dating relationship is likely to cause clients to question whether their interests would be zealously represented or the dating relationship might otherwise damage the lawyer-client relationship.

I did not have any ongoing litigation against the lawyer who asked me out. However, about a year before, we started helping helped facilitate discussions in a family dispute. While both our files were open, the clients were working it out between themselves and had not engaged either of us in their discussions for many months.

Brandon and I thought that I should go on the date first and see where it goes before disclosing anything to my client or withdrawing from that matter. We made it to the second date and, well, I am writing this article. One of us talked to our client and withdrew from the case we had together.

Our firms also needed to know about the potential conflict so we could be screened off from matters involving the other’s firm.During a very awkward moment during an attorney breakfast meeting, I let the cat out of the bag. Letting my partners into a very personal aspect of my life was uncomfortable, but it was worth it.

The dynamics of a dating another lawyer are complicated in many ways. Many of us have very strong personalities and figuring out how to leave the lawyering at the office is a challenge.We live in a relatively small town, so a conservative approach to avoid any appearance of impropriety was undoubtedly the best choice.   

Erica Payne is a shareholder at Kendricks, Bordeau, Keefe, Seavoy & Larsen, P.C. in Marquette, Michigan. Her practice focuses on real estate, probate and trust administration, and civil litigation in these areas. Since 2016, Erica has been member of the State Bar of Michigan Young Lawyers Section Executive Council, where she chairs the Upper Peninsula Engagement Committee, and Representative Assembly since 2016. Erica is serving her second term as President of the Marquette County Bar Association. She volunteers on several committees with the Real Property Law Section and organizations in Marquette.