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

53 Pages Posted: 5 Feb 2009 Last revised: 12 Oct 2011

See all articles by Helen A. Anderson

Helen A. Anderson

University of Washington - School of Law

Date Written: 2006

Abstract

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.

Keywords: Ethics, Positional conflicts, Conflict of interest

Suggested Citation

Anderson, Helen A., Legal Doubletalk and the Concern with Positional Conflicts: A 'Foolish Consistency'? (2006). Penn State Law Review, Vol. 111, No. 1, 2006, Available at SSRN: https://ssrn.com/abstract=1337677

Helen A. Anderson (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=116

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