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Recently, Weil, Gotshal & Manges, citing ethical concerns, decided to withdraw from representing pro bono the city of New York in its landmark lawsuit against the firearm industry. The New York firm claimed that it faced a positional conflict-a conflict between the position the firm was taking on behalf of the city and the position it might take in the future for an unidentified corporate client of the firm. Weil’s decision to drop the city marks a growing and worrisome trend. The principle of client loyalty has been expanded so broadly that decisions motivated by business considerations are now being recast as ethically mandatory. This trend has especially deleterious effects on lawyers’ pro bono and law reform activities. Traditionally, ethics rules did not prohibit positional conflicts. Asserting antagonistic positions for two different clients was not viewed as improper except when both cases were pending before the same court. Indifference to positional conflicts reflected the principle that lawyers were supposed to be independent of their clients. This was known as the taxicab rule: A client was entitled to dictate the direction of the case for which he or she had hired a lawyer but not the positions the lawyer took on behalf of other clients. Critics rightly noted that there were some problems in completely neglecting positional conflicts. If a lawyer took antagonistic legal positions on behalf of different clients, the representation of one or the other could be adversely affected. In a 1993 formal opinion, the American Bar Association proposed a balanced approach that accorded weight to lawyer independence as well as to client loyalty, forbidding representation of one client if it would materially impair the representation of another (absent mutual consent). Under the ABA’s approach, a lawyer was to consider carefully the effect on each representation before undertaking two matters in which he or she was asserting opposing sides of a legal issue. Indirect positional conflicts-conflicts in which the position being asserted for one client is generally adverse to the interests of another client but not in conflict with a position actually advocated-were not cause for concern. But lately the pendulum has swung so far that some lawyers claim that even indirect positional conflicts are improper. They use this argument to rationalize decisions to forgo pro bono or law reform work that would make their paying clients unhappy. Weil Gotshal, for example, justified its decision to drop the city by explaining that it had a “potential” positional conflict. This sounds like a pretty attenuated risk. Treating indirect positional conflicts as unethical eviscerates the ideal of lawyer independence by barring lawyers from any kind of work that could arguably hurt a client’s positions on legal or public policy issues. Such a broad prohibition is particularly detrimental to lawyers’ pro bono efforts to improve the system of justice. Lawyers as reformers The bar has a long, if fragile, tradition of encouraging lawyers to participate in law reform activities and represent clients without pay in worthy causes. Lawyers are especially suited to do this work in areas where they have expertise-the very areas in which they would be deterred from doing pro bono if all positional conflicts were considered unethical. Under a broad prohibition, a lawyer who represents landlords would be prohibited from pro bono representation of a tenant organization claiming broad protections under landlord-tenant law, because a victory could hurt the lawyer’s landlord clients down the line. A tax lawyer who represents corporations would be prohibited from advocating new rules to eliminate abusive tax shelters because these reforms would make it more difficult for their clients to engage in aggressive tax planning. The ethics rules defer to lawyers’ decisions to decline or withdraw from cases because they present potential conflicts. But it is disingenuous to frame such decisions in terms of ethics when they fundamentally are motivated by economics. Firms should be called on their attempts to put an ethical face on a business calculation. Consider Weil Gotshal’s decision: With more than 1,000 lawyers and nearly $700 million in revenue in 2003, it is one of the leading law firms in the world. Given its prominence, one would hope that it could muster sufficient courage to stand up to a corporate client, even one that represented significant billings, because an important principle was at stake. As the late Arthur Liman emphasized, pro bono work often brings criticism, even from a lawyer’s own clients, but it’s what lawyers do when they are at their best. Tanina Rostain is an associate professor and co-director of the Center for Professional Values and Practice at New York Law School.

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