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John Gaal's Ethics Corner
Q: I am scheduled to appear before the Second Circuit in a case next month. The case turns on an issue of statutory construction. I just found out that one of my partners is arguing a case before the New York State Appellate Division, Fourth Department next week, involving a very similar issue under the same statute, but, on behalf of his client, he is arguing a construction that is directly at odds with my position. Can we take these inconsistent positions?
A: According to both the ABA's Committee on Ethics and Professional Responsibility and the Restatement (Third) of the Law Governing Lawyers, this situation can present a serious conflict, requiring the lawyer to either refuse or withdraw from one of the representations.
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