Can a lawyer take opposing positions on a legal issue for different clients in unrelated matters at the same time?

Plain-English summary

Opinion 265 (adopted April 17, 1996) addressed positional conflicts. The inquirer regularly represented children committed to the District of Columbia child welfare system and, from time to time, foster parents seeking to adopt. An association of foster parents asked her to serve as its outside general counsel, and she asked what ethical considerations bore on taking the engagement, given that the association might want her to take positions on legal questions that conflicted with positions her individual clients wished to take in their own, unrelated cases.

The committee began with the traditional principle that there is nothing improper about a lawyer taking directly opposing views in different cases so long as the lawyer does not do so simultaneously; lawyers are hired to take positions and do not necessarily express their own views when they advocate (citing Rule 1.2(b)). A different problem arises, the committee explained, when a lawyer simultaneously argues inconsistent positions for two different clients, because the lawyer's credibility and effectiveness may be undermined and a successful outcome for one client could prejudice the other. The paradigm is the lawyer who argues one side of a legal issue to an appellate panel and then returns minutes later to argue the opposite side for another client.

The committee then applied D.C. Rule 1.7, whose structure it described as unique: subpart (a) covers nonwaivable conflicts (representing adverse positions in the same matter), and subpart (b) covers waivable conflicts. The controlling provisions were Rules 1.7(b)(2)-(4), under which a lawyer may not, without disclosure and consent, represent a client where the representation will be or is likely to be adversely affected by the representation of another client, or where the lawyer's professional judgment may be adversely affected. The committee concluded that the analysis turns on the likelihood that representing one client will, in a foreseeable and ascertainable sense, adversely affect the lawyer's effectiveness for the other. A mere possibility that one result will affect another is not enough; but if an objective observer can identify concrete ways one representation may reasonably be anticipated to interfere with the other, a cognizable conflict arises and disclosure and a waiver must be sought. The committee identified factors bearing on adverse effect: the relationship between the two forums; the centrality of the legal issue in each matter; the directness of the adversity between the clients' positions; whether the clients are racing for the first ruling on an unsettled question; and whether a reasonable observer would conclude the lawyer would hesitate or be less aggressive for one client because of the other.

Applying this to the inquiry, the committee concluded that the inquirer could not take positions for the association, even in unrelated matters, that were inconsistent with her individual clients' positions without disclosure to and consent of all affected clients, where one representation created a substantial likelihood of adversely affecting another. Because her litigation was concentrated in the Family Division and the D.C. Court of Appeals, simultaneously inconsistent positions in those courts would require informed consent in that circumstance; but in routine cases where no concrete adverse effect was foreseeable, no disclosure or consent was required. The committee noted she might alert individual clients at the outset that she represented the association and might consider seeking a prospective waiver, while observing that prospective waivers are often not fully informed and of doubtful enforceability, particularly for unsophisticated clients, and that a waiver from the association might carry more weight. It added that it would reach the same result under the ABA Model Rule and that the ABA reached substantially the same conclusion in Formal Opinion 93-377.

Currency note

This opinion was issued in 1996, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer argue opposite sides of the same legal issue for different clients?

A: The committee concluded that doing so sequentially in different cases is generally proper, but doing so simultaneously for two clients is not permitted, absent informed consent, where there is a substantial risk that advocating one position will adversely affect the other representation.

Q: When does a positional conflict require client consent?

A: The committee concluded that consent is required when an objective observer can identify concrete ways one representation may reasonably be anticipated to interfere with the other; a mere possibility of effect is not enough to trigger the duty to seek a waiver.

Q: What factors did the committee say determine whether a positional conflict exists?

A: The relationship between the two forums, the centrality of the legal issue in each matter, the directness of the adversity, whether the clients are racing for the first ruling on an unsettled question, and whether a reasonable observer would think the lawyer would hesitate or be less aggressive for one client.

Q: Could the lawyer serve as the association's general counsel while representing individual clients?

A: The committee did not forbid it, but concluded she had to monitor for positional conflicts and seek disclosure and consent where adverse effect was foreseeable, and noted she could consider a prospective waiver while recognizing such waivers' limited enforceability.

Background and rules framework

The opinion interpreted D.C. Rule 1.7, distinguishing its nonwaivable conflicts in subpart (a) (adverse positions in the same matter) from the waivable conflicts in subpart (b), and grounding its analysis in Rules 1.7(b)(2)-(4) (representation adversely affected by another client, and impairment of the lawyer's professional judgment). It drew on Rule 1.2(b) (a lawyer's advocacy does not endorse the client's views), Rule 1.3 (diligence), and Rule 1.4 (keeping the client informed) in explaining why simultaneous inconsistent positions can harm clients.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7(a), (b)(2)-(4) / Model Rule 1.7 (conflicts of interest)
• D.C. RPC 1.2(b) / Model Rule 1.2 (advocacy does not endorse the client's views)
• D.C. RPC 1.3 / Model Rule 1.3 (diligence)
• D.C. RPC 1.4 / Model Rule 1.4 (keeping the client informed)

Other opinions cited:

• ABA Formal Op. 93-377 (1993): positional conflicts of interest
• ABA Formal Op. 93-372 (1993): prospective waivers of future conflicts

See also

• ABA Formal Op. 93-377: Positional Conflicts of Interest
• DC Ethics Op. 301: Concurrent Representation of Two Plaintiffs Against a Common Defendant
• DC Ethics Op. 272: Hot-Potato Conflicts
• DC Ethics Op. 292: Thrust-Upon Conflicts of Interest

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-265