Legal Ethics Opinion No. 1476

Zealous Representation: Arguing Inconsistent Positions 
Concurrently in Two Courts on Behalf of Same Client

You have presented a hypothetical situation in which a client was
the victim of an alleged aggravated sexual assault by her work
supervisor on the work premises.  The client filed a civil action
pursuant to Va. Code 65.2-301(B) and subsequently filed a claim
with the Virginia Workers' Compensation Commission.  You indicate
that another law firm represents the employer and its insurance
carrier in both the circuit court and before the Commission.  You
further indicate that the defendants' law firm has indicated that
it plans to defend in circuit court by arguing that the matter is
compensable by exclusive remedy under the Workers' Compensation
Act.  The law firm indicates that it will simultaneously argue
before the Commission that the matter is not compensable but
should be addressed in circuit court.  

You have asked the committee to opine whether, under the facts of
the inquiry, the defendants' law firm may present the same
factual matter at the same time in two different tribunals
arguing diametrically opposed legal conclusions.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 7-102(A)(2), which states that a lawyer shall not
knowingly advance a claim or defense that is unwarranted under
existing law, except that he may advance such claim or defense if
it can be supported by good faith argument for an extension,
modification, or reversal of existing law.

The committee is aware that there is a split among other
jurisdictions as to the propriety of an attorney arguing opposing
sides of the same issue for different parties in different
courts, the so-called "issues conflict".  See California Legal
Ethics Opinion #1989-108, ABA/BNA Law. Man. on Prof. Conduct,
901:1605 [arguing opposing sides of the same issue is proper];
Philadelphia Legal Ethics Opinion #89-27 (3/90), ABA/BNA Law.
Man. on Prof. Conduct, 901:7528 [arguing opposing sides of the
same issue is proper, but not in appellate court]; New Mexico
Legal Ethics Opinion 1990-3 (5/23/90), ABA/BNA Law. Man. on Prof.
Conduct, 901:6009 [arguing opposing sides of the same issue is
improper].  However, at least one jurisdiction has opined that it
is not improper for an attorney to take totally different
positions, as to an administrative rule, on behalf of the same
party provided that the validity of the rule is subject to
legitimate dispute.  See Michigan Legal Ethics Opinion CI-1194
(4/6/88), ABA/BNA Law. Man. on Prof. Conduct, 901:4762. 

The committee also directs your attention to EC 7-20 which
states, in pertinent part, that the adversary system contemplates
that each lawyer will present and argue the existing law in the
light most favorable to his client.  Indeed, the committee
believes that the concept of zealous representation requires the
attorney to so argue for his client within the bounds of the law. 


Although the committee is cognizant that there is a credibility
problem inherent in an attorney's arguing both sides of the same
issue in different forums, it believes, however, that the duty to
zealously represent one's client outweighs any credibility
problem the attorney may have.  Thus, the committee opines that
it is not improper for the attorney to present the same facts at
the same time in two different tribunals arguing opposing legal
conclusions so long as he does not violate DR 7-l02(A)(1).  The
committee believes that such contradictory argument is analogous
to filing pleadings in the alternative, wherein the court is
given the opportunity to accept one of several theories of
recovery.  

Committee Opinion
August 24, 1992