So within the last few days the New York State Bar Association has issued an interesting new ethics opinion addressing a variation of an issue that is straightforward nearly everywhere.
Lawyers tend to know that conflicts questions can often be complicated but that there is at least one that is pretty straightforward: different lawyers in the same law firm cannot represent different clients who are on opposite sides of the “v” in the same lawsuit.
Can’t do it; can’t ask a client for consent; just a non-starter. (In Texas, your mileage may vary. But, otherwise pretty universal across the nation.) NYSBA Ethics Op. 1174 evaluates a somewhat esoteric question that revolves around whether participation in litigation as counsel for an amicus curiae works the same way. Namely, whether amici on opposite sides of the same litigation matter can be represented by lawyers in the same firm.
I think that the NYSBA has gotten the answer on this correct though I’m not as certain about whether the escape valve they offered the inquiring firm is entirely correct. To get to bottom of both of those points, it strikes me as easiest to first analyze something that the NYSBA did not discuss because it should ease folks into the correct answer (if you aren’t there already).
If you were representing the plaintiff in a case, could another lawyer in your firm take on the representation of an amicus curiae seeking to persuade the Court to rule in favor of the defendant’s position in that case? I think we’d all agree that the answer to that would be “no.” Maybe we’d argue over whether that was because that second matter would be “directly adverse” to the plaintiff client or whether it would just be a “material limitation” conflict. (FWIW, seems pretty directly adverse to my eyes.)
So, concluding that two different amici on opposite sides of the same litigation matter is a conflict seems like an entirely appropriate conclusion. It also seems fair to conclude, given the traditional language used in rules like Model Rule 1.7 (as does New York’s RPC 1.7(b)(3)) that it amounts to representing clients on both sides of the same litigation and, therefore, cannot be undertaken even with client consent. Those were the conclusions reached in Opinion 1174.
Because of the nature of the scenario that was presented to it, the NYSBA went a bit further to put together something of a “but you could do this” sweetener. The inquiring firm had surveyed its associates about interest in taking on an amicus matter on a pro bono basis and gotten mixed feedback because there were some folks who believed in the correctness of the opposite sides of the issue. The NYSBA indicated that lawyers in the same firm could appear for amici on opposite sides — if the lawyers were not representing a client but were acting pro se.
While that presents a potentially messy practical question for the firm, it seems like the correct result under the ethics rules if each side’s involvement is pro se. What is not clear to me is whether the NYSBA is intended to also address whether a firm lawyer could file a pro se amicus brief to take the adverse position to another amicus who is actually a client being represented by the law firm.
Certainly seems to me like some kind of additional conflict analysis would be required to evaluate that question because of the potential that the personal interest of one more lawyers that the firm could create a significant risk of materially limiting the firm’s ability to represent its client.
The opinion also does not address a much harder issue to both evaluate and to even “catch” in the first place … representing amici in different litigation matters who are on opposite sides of the same issue and advocating for outcomes that are markedly different on the same legal issue.
If a firm is fortunate enough to have built a conflicts system that would allow them to catch it, or if they otherwise figure it out ahead of time, that issue is one that should be run through the ringer as a “positional” or “issue” conflict and likely will turn on the relationship of the courts involved and whether one of the courts would be binding on the other when it decided the issue. At the very least, unlike the “same litigation” matter scenarios, that kind of conflict might be subject to waiver by the affected clients.