OSB April 2026

Can a lawyer or firm represent two unrelated clients who take opposite positions on the same legal issue in different cases?

Short answer: Often yes. The opinion concludes that taking inconsistent legal positions for unrelated clients in factually unrelated cases is not itself a conflict; a conflict arises only when the lawyer actually knows or reasonably should know both that the positions conflict and that a favorable outcome for one client will, or is highly likely to, adversely affect the other, and that conflict cannot be waived under Oregon RPC 1.7(b)(3).

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This page answers the general question as of 2026. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

A lawyer represents Client A in one court and Client B in another. The clients and their cases are unrelated and involve different adverse parties, but the matters share a common legal issue on which the clients take, or may take, opposite positions, and there is no way to reconcile the positions. The opinion asks under what circumstances the lawyer may represent both, with or without waivers, and whether the answer changes if two lawyers in the same firm each represent one client. Both answers are addressed in the discussion.

The opinion explains that this is an "issue" or "positional" conflict, because only the clients' positions on a legal issue conflict. The Oregon Rules of Professional Conduct do not treat issue conflicts as a separate category; they fall under the general current-client conflict rule, Oregon RPC 1.7. Drawing on ABA Model Rule 1.7 comment 24, the opinion notes it is ordinarily not improper to assert antagonistic positions in cases pending in different trial courts, though it may be improper in cases pending at the same time before an appellate court. The opinion focuses on Oregon RPC 1.7(b)(3), unique to Oregon, which makes a conflict nonwaivable where the lawyer is obligated to contend for something on behalf of one client that the lawyer has a duty to oppose for another.

The opinion concludes that a conflict under Oregon RPC 1.7(a)(1) is not present solely because lawyers in a firm assert conflicting legal positions for different clients in factually unrelated cases. But if a lawyer actually knows or reasonably should know of the conflicting positions and also knows or should know that an outcome favorable to one client will, or is at least highly likely to, adversely affect the other, a conflict exists and no waiver is permissible. The critical test is whether the outcome in one matter will or is highly likely to affect the other, as when one case is on appeal and will control a pending trial-level case; it is not met merely because two trial cases are pending in different counties. The opinion stresses the knowledge standard of Oregon RPC 1.0(h) (actual knowledge or what reasonable care should reveal) and notes that lawyers cannot be charged with knowing every issue across a firm, consistent with the imputation rule in Oregon RPC 1.10(a). It adds that even without a 1.7(a)(1) conflict, a 1.7(a)(2) material-limitation conflict can arise if a lawyer is so committed to one client's position that the lawyer cannot fairly represent the other, though such cases are the exception.

In practice

This opinion was revised in 2026 and interprets the current Oregon Rules of Professional Conduct. The opinion holds that issue or positional conflicts are governed by Oregon RPC 1.7, not a separate rule, and that asserting opposing legal positions for unrelated clients in factually unrelated cases is generally permitted. Per the opinion, a nonwaivable conflict under Oregon RPC 1.7(b)(3) arises only when the lawyer knows or reasonably should know both of the conflicting positions and that one case's favorable outcome will, or is highly likely to, harm the other client, the clearest example being an appellate decision that will control a pending trial case. The opinion holds that the knowledge standard under Oregon RPC 1.0(h) limits when a lawyer is charged with an issue conflict, and that a separate material-limitation conflict under Oregon RPC 1.7(a)(2) can exist when a lawyer is too committed to one client's position to represent the other fairly.

Common questions

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

A: Often yes. The opinion concludes asserting conflicting legal positions for unrelated clients in factually unrelated cases is not, by itself, a conflict under Oregon RPC 1.7(a)(1).

Q: When does an issue conflict become a real, nonwaivable conflict?

A: The opinion concludes a nonwaivable conflict under Oregon RPC 1.7(b)(3) arises when the lawyer knows or should know of the conflicting positions and that a favorable outcome for one client will, or is highly likely to, adversely affect the other.

Q: Does it matter whether one case is on appeal?

A: Yes. The opinion concludes the test is met when, for example, one case is on appeal and will control a pending trial-level case, but generally not when two trial cases are pending in different counties.

Q: Is the firm charged with knowing every legal issue across all its cases?

A: No. The opinion concludes that under the Oregon RPC 1.0(h) knowledge standard and the imputation rule, lawyers are not charged with knowing every issue conflict across a firm; actual knowledge or negligence in not knowing must be shown.

Background and rules framework

The opinion interprets Oregon RPC 1.7 (current-client conflicts), including the Oregon-specific nonwaiver provision in Oregon RPC 1.7(b)(3), the imputation rule in Oregon RPC 1.10(a), and the knowledge definition in Oregon RPC 1.0(h), corresponding to Model Rules 1.7, 1.10, and 1.0. It relies on ABA Model Rule 1.7 comment 24 and ABA Formal Op. 93-377 on positional conflicts.

Citations and references

Rules of Professional Conduct:

Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts; Oregon RPC 1.7(b)(3) nonwaiver provision)
Oregon RPC 1.10(a) / Model Rule 1.10 (imputation of conflicts)
Oregon RPC 1.0(h) / Model Rule 1.0 (definition of "knowingly")

Cases:

In re Bristow, 301 Or 194, 721 P2d 437 (1986), attacking and supporting the same franchising system in two cases
In re Knappenberger, 338 Or 341, 108 P3d 1161 (2005), duty to keep conflict records

Other opinions cited:

ABA Formal Ethics Op. No. 93-377; New York City Bar Formal Op. 1990-4; DC Bar Op. No. 265 (1996); State Bar of Michigan Op. RI-331 (2003)
OSB Formal Ethics Op. No. 2005-120 (rev 2026); OSB Formal Ethics Op. No. 2005-174 (rev 2026)

Source

Landing page: https://www.osbar.org/ethics/toc.html
Original PDF: https://www.osbar.org/_docs/ethics/2007-177.pdf

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