December 3, 1991
Where a lawyer's representation of two distinct clients in unrelated matters results in a consolidation of cases on appeal before the Supreme Court, and where the clients' positions are diametrically opposed and the lawyer, in advocating the best interests of one client, must necessarily advance an argument which would be hostile to the interests of the other client, the lawyer must withdraw from both representations.
References: MRPC 1.7, 8.4(c).
A lawyer represents two separate and distinct clients in unrelated domestic relations cases as a result of appeals taken from decisions of the lower courts (one case already has reached the Supreme Court and leave to appeal has been filed in the second case), it is anticipated that the Supreme Court will assume jurisdiction of the second case, and may consolidate the two cases.
Although the clients and their cases are unrelated, the lawyer is faced with the duty to advocate and argue truly diametrically opposed and adverse positions. No matter what the ultimate decision is that may be arrived at by the Court, one client will succeed and the other will fail. There is not any apparent scenario which would permit a decision in which each client might prevail.
The lawyer asks whether it is proper for the lawyer to continue representation of the clients.
MRPC 1.7 states:
"(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
"(2) each client consents after consultation.
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
Authors Hazard and Hodes explain in The Law of Lawyering, Prentice Hall, 1991:
"The question is always whether the same lawyer may serve both clients loyally. At one end of the continuum of conflict situations are those where the lawyer may serve the respective clients without their individual consent because the transactions are quite distinct. At an intermediate point are situations where the lawyer may represent both clients only with the consent of each because the legal aspects of the transactions are substantially related and entail client interests that are adverse. At the other end of the continuum are situations where concurrent representation is impermissible even with client consent, because the conflict is so intense that concurrent representation would entail an impaired relationship with one or more of the clients, making it unreasonable even to ask for their consent." pp 232-233.
When the lawyer undertook the representations, the matters were distinct and fit within the first type of situation described by Hazard and Hodes; client consent was not necessary. In trial courts, where the outcome has no precedential value to subsequent cases, a lawyer is not prevented from advocating to a tribunal a position contrary to that of another client, as long as that advocacy is not frivolous and the matters are not consolidated in one hearing before one adjudicator, MRPC 3.1.
It is not necessary to determine the exact point in time at which the representation of the client became "directly adverse" triggering MRPC 1.7(a), or "materially adverse" triggering MRPC 1.7(b), or when that adversity should have been apparent to the lawyer. We need only note on the facts provided, i.e., that the cases are both before the Supreme Court, and that effective advocacy on behalf of one client would contravene the position of the other. Under those circumstances a disinterested lawyer could not reasonably conclude that the representation of the client would not be adversely affected. Client consent, therefore, would not vitiate the conflict. Nor may the lawyer withdraw from one case without withdrawing from the other.
We are told that the Supreme Court will grant leave to appeal in the second case and then may consolidate the two cases. The dilemma presented offers an excellent argument to the Court in opposition of any act of consolidation of the matters. However, should consolidation occur, as assumed by the inquiry, MRPC 1.7 clearly precludes the lawyer from representation in a situation that calls for the lawyer to advance an argument in behalf of one client that would be directly adverse to the interest of the second client being represented in the same proceeding.
Hazard and Hodes discuss a similar situation, as follows:
"Lawyer L represents a plaintiff in one case in a state court and a defendant in an unrelated civil case in the same court. By chance, an identical technical question arises in both cases as to whether removal to federal court is proper. L is thus forced into the position of arguing opposing side of the same legal questions to the same federal judge.
"This case presents another example of a 'positional' conflict of interest. The conflict is not 'direct,' because the two parties are not opposing each other in litigation, and have no dealings with each other except for sharing the same lawyer. Even though L will make different arguments to the same judge, these facts present a strong case for allowing the multiple representation . . . .
"In the present case, L can explain to both clients that powerful arguments exist on both sides, and that he can properly present the strongest case for each position, and then let the court decide. On that basis, the client-lawyer relationships may not be jeopardized. Without the fortuity of a single lawyer's involvement, all that either client could reasonably have expected was that the best argument be made. Consequently, the representation each will receive will not have suffered at all. Furthermore, since each client could expect that his position in the litigation would be opposed by counsel for the other side, neither client has been harmed.
"If the cases do not turn on a 'pure' question of law, but involve factual distinctions, the situation might be different, for L might then have to characterize the legal question differently, and so treat his clients unequally. It would also be different if the two clients frequently had occasion to litigate this question, and had a long-term interest in the way in which it was decided." The Law of Lawyering, pp 226.1-227.
In addition to duties to the respective clients, the lawyer has duties to the administration of justice, MRPC 8.4(c). At a consolidated hearing how could the court adequately question the lawyer about the inconsistent positions he takes? Does the court avoid giving advantage to the lawyer's clients by requiring the lawyer to file briefs and argue points before reviewing the arguments of opposing counsel, regardless of who is actually appellant or appellee? Adequate representation of both clients in such a setting would be impossible to attain.
Continued representation in the event of consolidation under the facts presented is not ethically permissible, and the lawyer must withdraw from both representations. In so holding we are aware that the clients suffer greatly by having their successful and apparently sufficiently competent legal representation removed at the Supreme Court level. We see no way that result can be ethically avoided.
Similar considerations are also raised in multiple representation before the Court of Appeals, in light of the Supreme Court's adoption of the rule that the first decision of a panel of the Court of Appeals binds the entire court. Supreme Court Administrative Order 1990-6, 436 Mich lxxxiv.