VI. Issue or Positional Conflicts of Interest

LibraryProfessional Responsibility in Litigation (ABA) (2016 Ed.)

VI. Issue or Positional Conflicts of Interest

More ink has been spilled discussing the relevant ethical analysis when one lawyer or law firm is asked to take adverse positions simultaneously on the same issues in different cases for different clients before different courts than would seem to be justifiable based on how rarely the issues seems to have arisen in the case law.328 Ethics bodies from a number of jurisdictions have issued a variety of opinions over the years reaching a variety of differing conclusions as to when issue or positional asymmetry is severe enough to pose a conflict of interest.329

Yet, the mere fact that there is limited case law on the subject is not necessarily indicative of the likelihood that such a scenario may arise in the real world. Issue or positional conflicts of interest are the kinds of conflicts that are both difficult to capture in even the most sophisticated law firm conflicts systems and, unless raised by the lawyers involved, are often unlikely to be discovered by the clients affected. Further, issue or positional conflicts are often treated, and resolved or avoided in the first place, as "business conflicts" in which a primarily defense-based firm, for example, is unwilling to take a plaintiff's employment law case for fear of how it may be perceived by the firm's business clients. Nevertheless, given the nature of this type of conflict of interest, it is most likely to arise, if at all, with respect to lawyers engaged in appellate practice and is worthy of some further discussion.

The ABA's Standing Committee on Ethics and Professional Responsibility addressed issue conflicts for the first time in 1993.330 In Formal Opinion 93-377, the committee examined a scenario in which "a lawyer is asked to advocate a position with respect to a substantive legal issue that is directly contrary to the position being urged by the lawyer (or the lawyer's firm) on behalf of another client in a different and unrelated pending matter which is being litigated in the same jurisdiction."331 The committee's ultimate conclusion, looking to language of a comment to then-Model Rule 1.7, was that a lawyer in such a position, if not immediately aware of the problem so as to be able to avoid taking on the second representation, could reasonably conclude that her choice was to either withdraw from one of the two representations or, after disclosing fully to both clients the potential impact that obtaining one desired ruling would have on the other, could obtain consent from each client to continue the representations.332

The current version of Model Rule 1.7, which did not exist at the time of Formal Opinion 93-377, dedicates an entire comment to the topic of lawyers taking inconsistent legal positions on behalf of different clients at the same time. The comment acknowledges that the general rule is "that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest."333 But the comment explains that taking inconsistent legal positions can be a Model Rule 1.7(a)(2) "material limitation" conflict of interest in certain circumstances and identifies relevant factors in determining whether a material limitation is sufficient to require advising the clients of the risk and obtaining informed consent.334 Those factors are "where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer."335

The Restatement (Third) of...

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