Helen A. Anderson, Legal Doubletalk and the Concern with Positional Conflicts: A "Foolish Consistency"?, 111 Penn St. L. Rev. 1 (2006), https://digitalcommons.law.uw.edu/faculty-articles/221
Penn State Law Review
This article argues that a legal positional conflict is not a true conflict of interest, and should not be the subject of an ethical prohibition. Because of the incentives it creates, a rule against positional conflicts gives greater control to wealthy clients over the availability of legal services without significantly protecting the rights of the poor or middle income clients. Business conflicts already exert significant pressure on lawyers; too much concern with potential positional conflicts only increases that pressure.
This article also argues that eliminating an ethical prohibition against potential conflicts could mitigate much of the credibility concerns raised by contradictory legal arguments. But even if the profession fully endorsed the ethic of independence and eliminated a rule against positional conflicts, some credibility problems would inevitably remain.
Thus, while there should be not rule against positional conflicts, a court should respect an appointed attorney's decision to withdraw because of credibility concerns.
Part I of this article defines a positional conflict, and distinguishes between legal and factual positional conflicts. Part II surveys the historical evolution of the ABA position on positional conflicts while Part III describes the approaches of the Restatement of the Law of Lawyering, case law, state ethics opinions and state ethical codes.
Part IV critiques the predominant analysis of positional conflicts as potential conflicts of interest, arguing that it exacerbates business conflicts and creates harmful incentives. This section also acknowledges the credibility concerns with positional conflicts, and illustrates the operation of a positional conflict with the example of a public defender. Part V sets forth a proposal to amend the comments to Model Rule 1.7.