Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Arguing Opposite Sides of the Same Legal Issue in Different Matters: Can it be Done Ethically?
 
Judge Opuesto calls your matter on calendar. On a developing issue of law, you eloquently argue that the rule should be A. The judge listens intently, seems to be accepting your arguments, and takes the matter under submission. She calls the following matter, but there is no need for you to step away from counsel table because you are there to just as eloquently argue that the result on the same issue of law should be not-A. The judge’s wrinkled forehead seems to indicate she is a bit perplexed as to how you could ethically be arguing both sides of the same issue. Well…it turns out you just might be able to do so.
 
 In Formal Opinion No. 1989-108, the State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) poses the question, “Is it unethical for an attorney to represent two clients who are not directly adverse to one another where the attorney will be arguing opposite sides of the same legal question before the same judge?” Ultimately, COPRAC concludes:
 
Even where there is a substantial likelihood that one or both clients will be prejudiced by the representation, the attorney is not acting unethically by continuing the representation. The prudent attorney, however, will advise both clients of the other representation (if to do so will not violate the attorney/client relationship) and allow both an opportunity to seek new counsel. 
 
This conclusion is justified by the practical consideration that a uniform rule of disclosure in this context would require attorneys to maintain an impossible conflict detection system:
 
Conflict of issue detection within a firm of even several attorneys using even the most sophisticated automated conflict of interest check system would be virtually impossible. There is simply no practical way that attorneys can track the legal issues that evolve during the course of an engagement in a system which will enable the attorney to later retrieve the information before a contrary position is taken for another client.
 
Additionally, such a rule would interfere with clients’ right to counsel of choice.
 
Taking such opposite positions in these circumstances does not constitute a conflict of interest under Rule of Professional Conduct 3-310(B) (“Avoiding the Representation of Adverse Interests”) because this rule does not govern “issues conflicts,” such as that presented here. This is so despite acknowledgement that “[b]y continued representation the member will be doing his or her best to establish precedent which may be used against the other client” and that, “as to both clients, the credibility of the attorney before this tribunal may be seriously at risk, as the member attempts to persuade the judge to rule first one way than the other way on the same issue.” Also, it is not a violation of Rule 3-110 (“Failing to Act Competently”) in that this rule specifically defines “ability” to competently represent the client as the necessary physical, emotional, and mental faculties to perform the job competently. “[I]t would go beyond the scope of this rule to argue in favor of disciplining an attorney as being incompetent by virtue of the ‘disability’ caused by taking inconsistent legal positions before the same trial judge.” Similarly, it is not a violation of the duty of loyalty; COPRAC “does not believe that there can be any reasonable expectation on the part of the client that the duty of undivided loyalty prohibits the attorney from taking an inconsistent legal position on behalf of another client. It is our opinion that if the attorney chooses not to disclose the two representations the attorney does not violate his or her duty of loyalty to the client.”
 
The above is not to say that one should be insensitive to the clients’ downside. (It is also worth noting that COPRAC’s above conclusion has not been universally accepted.) As to the risk of lack of credibility before the same judge, COPRAC notes, “[c]learly the interests of each client would be better served without the existence of the other representation.” Also, it warns that attorneys “must keep in mind the potential for civil liability if harm to the clients does occur which might have been avoided by timely disclosure.” 
 
Whatever one’s view on whether the attorney is subject to discipline, there is little doubt with respect to the prudence of disclosing the issue conflict to both clients. I often think of disclosure in this way: were I the client, would I want to know this fact/aspect of my attorney’s representation of me? If you answer this question in the affirmative, you would probably do well to disclose the information…and in writing with the client’s approval of the same, regardless of whether ethically required to do so. (Of course, do not forget that you might need another client’s prior consent to disclose the information in question.) 
 
--Luis E. Ventura
 
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**