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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.
Under both ABA Formal Opinion 93-377 and Restatement (Third) of the Law Governing Lawyers, Section 128, comment f, where the two matters are being litigated in the same jurisdiction, and there is a substantial risk that the law firm's representation of one client will create a legal precedent (even if not binding) that is likely to materially undercut the position being urged in behalf of the other client, the lawyer should either refuse the second representation, withdraw from the first representation (if otherwise permissible) or only proceed with both representations after full disclosure to and consent of both clients. Of course, the result is the same regardless of whether the inconsistent positions are to be taken by the same lawyer or by different lawyers in the same firm.
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