Legal Doubletalk and the Concern with Positional Conflicts: A “Foolish Consistency”?

This article explores the question whether lawyers should be able to argue both sides of a legal issue is unrelated cases. Today the ABA and many state bar associations caution against so-called “positional conflicts,” analyzing them as potential conflicts of interest under a multi-factor test. This relatively recent concern misses the real potential for harm: it is precisely when a lawyer decides not to make a contradictory argument for one client in order not to offend or harm another client that an ethical problem is likely to be present. A positional conflict is therefore evidence that any pressure to modify arguments has been overcome. In fact, a rule against positional conflicts only increases lawyers’ incentives to modify or drop arguments for the less-favored client. Thus, there should be no ethical prohibition against positional conflicts. On the other hand, a positional conflict may create credibility problems, despite the widely held professional ideals of independence and detachment. The positional conflict debate exposes fundamental ambivalence about lawyer sincerity, loyalty and independence. Eliminating a rule against positional conflicts will to some extent mitigate those credibility problems, but not entirely