Can a lawyer or firm argue one legal position for one client while arguing the directly opposite position for another client in a different, unrelated pending case?

Plain-English summary

The committee addressed the "positional conflict": a lawyer or firm advocating a substantive legal position for one client that is directly contrary to a position it is urging for another current client in a different, unrelated, pending matter. It started from the recognition, in the comment to Rule 1.9, that "a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client." The mere fact that a lawyer argues inconsistent legal positions in unrelated cases is not, by itself, improper.

The opinion identified the concerns that can make a positional conflict a real one. If both cases are argued in the same court, the lawyer's advocacy may be diluted in the eyes of the judges; a decision in the first case may become persuasive or even binding precedent that impairs the lawyer's effectiveness in the second, raising a "race" to be first that could favor one client over the other; and a client may come to fear the firm has divided loyalties. The committee grounded the analysis in Rule 1.7, under which a lawyer may not undertake a representation that will be directly adverse to, or materially limited by responsibilities to, another client unless the lawyer reasonably believes the representation will not be adversely affected and each client consents after consultation. It noted the Rule 1.7 comment recognizing that asserting antagonistic positions is "ordinarily not improper in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court," because an appellate ruling would likely be binding precedent in the second case.

The committee's resolution turned on the risk of an adverse precedent. Where the two matters are litigated in the same jurisdiction, the lawyer should, in the absence of consent by both clients after full disclosure, refuse the second representation "if there is a substantial risk that the lawyer's advocacy on behalf of one client will create a legal precedent which is likely to materially undercut the legal position being urged on behalf of the other client." But "if the two matters are not being litigated in the same jurisdiction and there is no substantial risk that either representation will be adversely affected by the other, the lawyer may proceed with both representations." The opinion thus made the same-jurisdiction, precedent-impact inquiry the dividing line.

Currency note

This opinion was issued in 1993, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which rewrote Rule 1.7 and added a comment (now Comment [24]) addressing positional conflicts directly. The 2002 rule and its comment, not this opinion, now frame the question. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a firm take opposite sides of the same legal issue in two different cases?

A: Often yes. The committee said arguing inconsistent legal positions in unrelated cases is not by itself improper, echoing the Rule 1.9 comment.

Q: When did a positional conflict require declining the second case?

A: When the matters were in the same jurisdiction and there was a substantial risk that advocacy for one client would create a precedent likely to materially undercut the other client's position, absent both clients' consent after full disclosure.

Q: Did it matter whether the cases were in trial or appellate courts?

A: Yes. The opinion relied on the Rule 1.7 comment's view that asserting antagonistic positions is ordinarily fine in different trial courts but may be improper in cases pending at the same time in an appellate court, because an appellate ruling is likely binding precedent.

Background and rules framework

The opinion interpreted Rule 1.7 (conflict of interest with a current client), reading both 1.7(a) (direct adversity) and 1.7(b) (material limitation), against the comment recognizing positional conflicts. It referenced the Rule 1.9 comment on adverse positions in distinct matters and Rule 1.1 (competence) in the sense of effective advocacy. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; 1.7(a) direct adversity, 1.7(b) material limitation)
• MR 1.9 (duties to former clients; comment on adverse positions in distinct matters)
• MR 1.1 (competence; effective advocacy)

See also

• ABA Formal Op. 497: Conflicts involving materially adverse interests
• ABA Formal Op. 494: Conflicts from a personal relationship with opposing counsel

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 93-377.pdf