13.12. Positional Conflicts

A positional conflict is where a lawyer is taking two different positions in different courts.  The problem with positional conflicts is that in certain situations if a lawyer succeeds in one argument, it could be detrimental to the interests of the second client in the other matter.  The issue is whether such conflicting advocacy creates a conflict of interest.

Latoya Lawyer is a well-known divorce lawyer in Mississippi.  She represents both husbands and wives in courts across the state.  She tells you: “Listen to this: On Monday I have a hearing in Biloxi, and I will be arguing on behalf of my client that the court should not follow the ‘tender years’ doctrine.  After that, I have to drive up to Tupelo where, on Wednesday, I have a hearing and I will argue that the court should follow the ‘tender years’ doctrine. Isn’t that crazy?” Is Lawyer taking these conflicting positions unethical?

No.  The test is set out in a Comment to Rule 1.7: “Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients.  The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.”[1]  Beyond this general statement, however, it gets confusing.

The Comment goes on to say that it would be a conflict for interest for a lawyer to promote inconsistent legal positions if  “there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case. . . .”[2]  The Comment gives an example where a decision in one case will create precedent that will materially weaken the position taken on behalf of the other client. 

The Comment says that the lawyer taking inconsistent positions should weigh the following factors to decide whether there is a materially limiting conflict of interest that would require the lawyer to obtain informed consent from the client’s involved:  (1)  where the cases are pending (2) whether the issue is procedural or substantive (3) the temporal relationship between the matters (how far apart in time are the matters) and, (4) “the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer.”[3]

[1] ABA Rule 1.7, Comment [24].

[2] ABA Rule 1.7, Comment [24].

[3] ABA Rule 1.7, Comment [24].