Ethics Opinion 265
Positional Conflicts of Interest in Simultaneous Representation of Clients Whose Positions on Matters of Law Conflict With Other Clients’ Positions on Those Issues in Unrelated Matters
When a lawyer is asked to represent an entity that takes positions on matters of law in a subject area in which the lawyer practices regularly on behalf of other clients, the lawyer may not, without the informed consent of all affected parties, accept simultaneous representation of both clients where such representation creates a substantial risk that representation of one client will adversely affect the representation of the other.
- Rule 1.7 (Conflicts of Interest)
The inquirer is a lawyer in private practice who regularly represents children committed to the District of Columbia child welfare system. In addition, the inquirer from time to time represents foster parents who are interested in adopting their foster children. An association of foster parents has approached the inquirer and asked her to serve as their outside general counsel. The inquirer asks what ethical considerations bear upon her decision whether to undertake the general counsel engagement on behalf of the association client.
The present inquiry raises subtle and difficult ethical issues. It does not focus on the more ordinary situation where the interests of two of a lawyer’s clients may clash in the same matter; instead it focuses on situations where the conflicts arise because positions taken by two clients in two unrelated matters are at variance.
The problem that prompts the inquiry is at its heart a conflicts problem. The foster parents’ association, which has asked the inquirer to be its outside general counsel, may from time to time wish the inquirer to take positions on matters of law that conflict with positions that the inquirer’s individual clients—either neglected children or adopting foster parents—may wish to take in their individual cases. The rules of ethics make it clear that the inquirer could not take conflicting positions on behalf of the foster parents’ association in the very same cases in which the inquirer’s clients are involved. The more difficult question arises in the context of positions taken by the inquirer’s proposed client in unrelated cases or in legislative activities that are inconsistent with positions taken by the inquirer’s other clients in their cases. The inquirer asks what ethical precepts are relevant to her proposed conduct.
1. The District of Columbia Conflicts Rules
The inquirer’s conduct in this instance is principally controlled by Rule 1.7. The format of the District of Columbia’s Rule 1.7 is unique. It divides the world of conflicts into two broad categories—the waivable and the nonwaivable. Nonwaivable conflicts are covered in subpart (a). Where a lawyer attempts to represent two or more adverse interests in the same matter, the conflict is said to be unwaivable and therefore never ethically permissible regardless of whether the clients would consent if asked.1 The present inquiry does not focus on this type of situation but, rather, on those situations where the adversity does not occur in a single matter.
The District of Columbia rule speaks of those conflicts that can be waived in Rule 1.7(b). Three distinct concepts are involved. The first concept is embodied in Rule 1.7(b)(1), which gives expression to the basic notion that a lawyer ought not, without the client’s consent, oppose the lawyer’s own client, even where that client is represented by another lawyer in that matter. Rule 1.7(b) applies to this situation even though the matter that the lawyer seeks to undertake is entirely unrelated to the other matter on which the lawyer represents the client. That notion is not involved here.2
The rules that control the question before us are Rules 1.7(b)(2-4). Those rules recognize a conflict of interest where, in the case of Rules 1.7(b)(2) and (b)(3),3 the representation of the one client may interfere 3 with the representation of another. Rules 1.7(b)(2) and 1.7(b)(3) express two faces of the same concept, which is that where the representation of one client interferes in some substantial way with the representation of another, the lawyer is prevented from representing at least one and perhaps both of the clients unless there is full disclosure and unless both clients consent.
Finally, Rule 1.7(b)(4)4 addresses itself more to the independence of a lawyer’s judgment on behalf of the lawyer’s client than to the unfettered effectiveness of the lawyer’s representation, which is more directly addressed in Rules 1.7(b) (2 and 3).
2. Positional Conflicts in General
A traditional notion in the law of legal ethics holds that there is nothing unseemly about a lawyer’s taking directly opposing views in different cases so long as the lawyer does not do so simultaneously. Thus, a lawyer who is a prosecutor may urge that the death penalty be imposed in appropriate criminal cases. If the lawyer then leaves the government and moves to a private firm, there would be nothing improper about the lawyer’s subsequently urging that the death penalty was unconstitutional in all cases despite having argued the contrary as a prosecutor.
The movement from one office to another is not necessary to legitimize this change of positions on a particular issue. A lawyer engaged by a plaintiff in a particular personal injury case may be called upon to argue that punitive damages should be awarded in copious amounts. Once that engagement has been concluded, the same lawyer may urge on behalf of a subsequent civil defendant that punitive damages ought to be eliminated entirely. Lawyers are hired by clients to take positions and are not necessarily expressing their own personal views when they advocate on behalf of clients. See Rule 1.2(b).
However, a different sort of problem may arise when the lawyer simultaneously argues inconsistent positions on behalf of two different clients. The lawyer’s credibility, and therefore the lawyer’s ability to represent the lawyer’s two clients effectively, may be undermined by the lawyer’s appearing simultaneously, or virtually simultaneously, to argue two totally inconsistent positions. Moreover, a successful outcome for one client could prejudice the other.
The paradigm case is that of the lawyer who argues a case to a court of appeals, arguing that the court ought to reach a certain conclusion of law. In this paradigm, the oral argument in the first case is concluded, the clerk calls the next case, and the same lawyer returns to the podium representing another client, this time on the opposite side of the identical issue, to urge a position that is flatly inconsistent with the one that the lawyer took five minutes ago before the same appellate panel. In that situation, one or both of the clients is thought to have been deprived of effective representation.
While these concepts are fairly easy to perceive in the paradigm example given, they become more attenuated and less easy to define as one moves away from the paradigm example given above. Can a lawyer simultaneously urge inconsistent positions before two different appellate panels in the same court? Generally, it is thought that the lawyer cannot do so because of the communication that goes on between members of different appellate panels and because of the deference that one panel would give to the decision of another.
The commentary to the American Bar Association conflicts rule would seem to limit this problem to appellate courts. ABA Model Rule 1.7, Comment . However, legal scholars have widely criticized this comment, pointing out that a functional analysis is more appropriate than one that turns entirely upon the nature of the court, Underwood & Fortune, Trial Ethics § 3.4.3 at 84 (1988), Wolfram, Modern Legal Ethics 355 n.41 (1986); the ABA’s Ethics Committee has indicated that the comment cannot be read literally (see ABA Opinion 93-377); and the comment was dropped from the District of Columbia version of Rule 1.7.
What if one of the representations is in the trial court and the other is in a directly superior appellate court? It is possible that a lawyer may not be fully effective in this circumstance since a favorable decision for one client in the appellate court could directly undermine the lawyer’s efforts on behalf of the other client in a subordinate trial court. A third and more difficult situation is posed where the lawyer simultaneously takes inconsistent positions before two different judges of the same trial court. Even in this case, simultaneous inconsistency may in some cases be undesirable because co-ordinate judges of the same trial court, while not strictly bound by the decisions of their fellow judges may, nevertheless, pay considerable deference to them, and one or the other of the lawyer’s two clients may thereby be adversely affected.
The conflicts rules implement ethical norms that are contained in other rules. For instance, Rule 1.3 speaks of a lawyer being diligent and zealous on behalf of his client. It is difficult to know how a lawyer could be equally diligent and equally zealous on behalf of two clients when simultaneously taking inconsistent positions before the same court, where the results of the lawyer’s representation of one client will directly and adversely impact another client of the same lawyer.5
The answer to the problem posed turns upon the likelihood that the representation of one client will, in some foreseeable and ascertainable sense, adversely affect the lawyer’s effectiveness on behalf of the other. The mere possibility that a result in one representation will affect the outcome of another is not enough to trigger a conflict as to which waiver must be sought. But if an objective observer can identify and describe concrete ways in which one representation may reasonably be anticipated to interfere with the other, then a cognizable conflict arises under our rules, and disclosure must be made and a waiver sought.
Central to deciding whether adverse effect, and therefore a conflict, exists will be issues such as: (1) the relationship between the two forums in which the two representations will occur; (2) the centrality in each matter of the legal issue as to which the lawyer will be asked to advocate; (3) the directness of the adversity between the positions on the legal issue of the two clients; (4) the extent to which the clients may be in a race to obtain the first ruling on a question of law that is not well settled; and (5) whether a reasonable observer would conclude that the lawyer would be likely to hesitate in either of her representations or to be less aggressive on one client’s behalf because of the other representation.6 In sum, we believe that the 6 focus of the analysis ought not to be on formalities but should be on the actual harm that may befall one or both clients.7
3. Application of the Rules to the Present Inquiry
Turning now to the facts before us, the inquirer in this case may well be asked by the foster parents association to take positions on issues of law, either legislatively8 or in litigation, that are inconsistent with positions taken by individual clients of the inquirer—whether neglected children or foster parents—in unrelated matters. As our discussion above indicates, under Rules 1.7(b)(2-4), the lawyer may not take such conflicting positions—even in unrelated matters—without making full disclosure and seeking the consent of all affected clients.
Inasmuch as the inquirer’s practice is limited to the District of Columbia, most of her litigation is conducted in the Family Division of the Superior Court and, to a lesser extent, in the District of Columbia Court of Appeals. It would be ethically impermissible for her to take simultaneously inconsistent positions on issues of law on behalf of different clients in those two courts without the informed consent of all of her affected clients where the representation of one client creates a substantial likelihood that her success on behalf of that client might substantially impact another client adversely. On the other hand, in a wide variety of routine cases where no concrete adverse effect by one representation on another is foreseeable, the inquirer is not obliged to make disclosure or to seek consent. No general opinion from this Committee can anticipate every such eventuality. We can only direct the inquirer’s attention to the factors set forth above and urge her to weigh them carefully in each case.
Even if no actual current inconsistency exists at the outset of the representation, the inquirer may be well advised to alert her individual clients at the time that they retain her (or that she is appointed by the court) that she regularly represents the association of foster parents and that she might in the future be asked to take a position on behalf of that group that would be inconsistent with a position that the individual client wished to take. Indeed, there may be some circumstances where such a disclosure would be required by Rule 1.4, governing a lawyer’s obligation to keep her client reasonably informed. To the extent that such conflicts are likely to arise during the course of her representation and to the extent that the inquirer may become identified in the eyes of the court as the usual or ordinary spokesperson for the foster parents association, prospective clients may be entitled to be made aware of the circumstances at the time they are deciding whether to retain the inquirer.
Beyond simply informing the individual client that she might be asked to take an adverse position, the inquirer will need to consider whether she wishes to try to seek a prospective waiver from an individual client at the time she is retained. Such a prospective waiver is often, by definition, not fully informed since the precise nature of the future conflict may not be known at the time that the prospective waiver is obtained. See ABA Opinion 93-372. The enforceability of such a waiver is open to some doubt, especially where the client is not a sophisticated consumer of legal services and therefore not well equipped to foresee the future costs and benefits of such a decision.
On the other hand, a prospective waiver by the foster parents association may be of greater weight—if fully informed—inasmuch as the association may be better positioned to make judgments concerning the desirability of entering into a prospective waiver.9
4. Relevance of ABA Model Rule 1.7
We point out that even though District of Columbia Rule 1.7—the general rule dealing with conflicts of interest—is, at least on its face, quite different from the ABA model rule on the same subject,10 we would reach the same result under the language of that rule that we do under the District of Columbia’s rule. The drafters of the District of Columbia conflicts rule found the ABA formulation unclear because they thought that the ABA Model Rule could be read to mean that all conflicts were potentially waivable. The design of the District of Columbia version of the rule was intended in part to emphasize that some conflicts are intolerable, even if full disclosure is made and even if client consent is obtained. See Paragraphs  and  of the Explanation of Committee and Board Revisions to Rule 1.7 of Submission in Connection with a Petition of the Board of Governors of the District of Columbia Bar to the District of Columbia Court of Appeals, November 19, 1986.
Despite these facial differences, the drafters of the District of Columbia’s Rule 1.7 were at some pains to point out that, although they took a different drafting approach than did the ABA, they did not believe that the different form of words they used would lead to significantly different results in actual cases from the results that would be achieved under the ABA’s model rule or the old model code on conflicts.
“Indeed, we believe that the Rule we propose would lead to substantially the same conclusions in actual fact situations as would the ABA draft. We, likewise, do not believe that the general Rule we have proposed would result in any substantive changes in the results reached in the conflicts cases that have arisen under the present DR 5-101 and in the application to date of the ‘appearance of impropriety’ test.” Paragraph  of the Explanation of Committee and Board Revisions to Rule 1.7 of Submission in Connection with a Petition by the Board of Governors of the District of Columbia Bar to the District of Columbia Court of Appeals, November 19, 1986. Nothing to the contrary having been said during the process of adopting the rule, the District of Columbia Court of Appeals apparently had the same intention when it adopted the District of Columbia’s unique Rule 1.7.
We make the point in the current context because the ABA’s Legal Ethics Committee arrived at substantially the same conclusion that we take here today in its formal Ethics Opinion No. 93-377 (October 16, 1993). Inasmuch as the District of Columbia rule and the ABA model rule are intended to achieve the same results, albeit through different drafting approaches, the ABA’s Opinion No. 93-377 is persuasive in helping us to reach the result embodied in this opinion.
5. Legislative History of District of Columbia Rule 1.7
Interestingly, the draft of Rule 1.7 initially recommended to the Court by the District of Columbia Bar contained a Rule 1.7(b)(5) together with commentary. Proposed Rule 1.7(b)(5) would have required a lawyer to make full disclosure and to seek client consent where “other interests of a client will be or are likely to be adversely affected by the lawyer’s assumption of such representation, and the proposed commentary said that the protected client interests could be as broad as business rivalry or personal difference[s] between two potential clients.
The publication of proposed Rule 1.7(b)(5) by the Court drew protest on the grounds that the rule would have erected an extremely broad positional conflict rule that would have hampered lawyers and firms from undertaking varied representations and would have given existing clients broad veto powers over their lawyers’ ability to accept new clients, thereby endangering the independence of lawyers and their willingness and ability to represent unpopular and pro bono clients.
Upon further reflection, the Bar filed a second petition with the Court withdrawing its proposed Rule 1.7(b)(5) and the accompanying comment, and the Court did not include it in the final rule that was adopted. This legislative history convinces us that the Court did not intend to extend the positional conflicts rule in the District of Columbia beyond the effective reach of the ABA Model Rule and that for us to interpret the rule that the Court did promulgate any more broadly than we do today would be contrary to the Court’s intention.
1. Rule 1.7(a) states: “A lawyer shall not represent a client with respect to a position to be taken in a matter if that position is adverse to a position taken or to be taken in the same matter by another client represented with respect to that position by the same lawyer.”
2. Rule 1.7(b)(1) is phrased in terms of the “positions” to be taken by the lawyer’s client being adverse; the word “position” is not used in the remaining sections of Rule 1.7(b).
3. Rule 1.7(b)(2) and (b)(3) state that without disclosure and consent: “. . . a lawyer shall not represent a client with respect to a matter if: . . .
(2) such representation will be or is likely to be adversely affected by representation of another client; [or]
(3) representation of another client will be or is likely to be adversely affected by such representation. . . .”
4. Rule 1.7(b)(4) states that without disclosure and consent: . . . a lawyer shall not represent a client with respect to a matter if: . . .
(4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
5. Rule 1.1 requires a lawyer to be competent. Some commentators have raised the question whether it is possible to be fully effective on behalf of one client when the lawyer is at the same time advancing a contrary position on behalf of another client even if the two matters are wholly factually unrelated. See Dzienkowski, Positional Conflicts of Interest, 71 Tex. L. Rev. 457, 485 at n. 130 (1993).
6. Comment  to Rule 1.7 points out that Rule 1.7: “is not violated by a representation that eventuates in the lawyer’s unwittingly taking a position for one client adverse to the interests of another client.” In other words, the positional conflict rule does not require that the lawyer make an inquiry of every one of the lawyer’s clients as to every position that those clients may be taking in unrelated matters—an obviously impossible task for most, if not all, lawyers. The rule focuses on those conflicts that would be apparent to a reasonably conscientious lawyer.
7.For a lawyer in a firm, the problems discussed here may be attenuated if two or more lawyers are involved. The analysis will depend in substantial part on the nature of the conflict. The representation of a client by a D.C. partner in a large national law firm might not be adversely affected by a representation of a client by the same firm’s Los Angeles office where the problem arises because the D.C. partner is a well-known spokesman for her client on a given issue as to which the Los Angeles client takes a contrary position. But if the California and D.C. clients are both in federal court racing to obtain the first ruling from the United States Supreme Court on an open question of substantive law, the imputed disqualification rules would clearly come into play.
8. Comment  to the District of Columbia Rule 1.7 makes it clear that that rule applies to efforts “to influence policy or achieve a legislative result.”
9. To the extent that the general philosophy and the types of positions that the foster parents association tends to take are well known and predictable, more detailed advance disclosure may be possible, and the prospective waiver may to that extent have more force and effect. Beyond the scope of this opinion is the question of what the inquirer’s responsibilities are where such a conflict later arises and is not fully consented to by all affected parties; specifically, we do not discuss here when the inquirer will be able to cure such a conflict by withdrawing from representing one of the parties as opposed to when she will be obliged to withdraw from representing both. Her prospective waiver agreement may attempt to address these issues by having the clients agree in advance that she may withdraw from representing one and continue on behalf of the other.
10. Model Rule 1.7 states:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.