Washington Lawyer

Legal 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

From Washington Lawyer, December 2003

(The December 2003 “Speaking of Ethics” column discusses Opinion 265. Focusing significantly, but not solely, on Rule 1.7 (Conflicts of Interest), Opinion 265 addresses possible conflicts for unrelated matters that might bear upon one or the other and that are of concern for lawyers and their clients.)

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 … 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 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), the representation of the one client may interfere …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) 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).

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….

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.

… 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.

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. …

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 legislatively 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. …

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. …

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. …

Inquiry No. 94-1-3
Adopted: April 17, 1996