Surrender of Cornwallis

The World Turned Upside Down.
Credit: Detroit Institute of Art

Here is some news that partisans of the Lago Agrio plaintiffs have gleefully passed along to me. The Courthouse News Service is reporting that lawyers with Gibson Dunn, Chevron’s law firm, will be arguing, in an unrelated case in the Second Circuit that will be heard tomorrow, that private parties lack standing to seek injunctive relief under RICO. This, of course, is precisely the opposite of what Chevron is arguing in the Donziger case. But don’t chuckle gleefully just yet, Chevron critics: it turns out that lawyers from Emery Celli, a firm that previously represented the Ecuadoran plaintiffs in their effort to enjoin the BIT arbitration, is arguing the other side!

Now, I’m not sure whether Emery Celli still represents the plaintiffs, so it may not be in precisely the situation Gibson Dunn is in. But here, for what it’s worth, is what the ABA comment to Rule 1.7 of the Model Rules of Professional Conduct, the rule on conflicts of interest involving current clients, has to say:

Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

I suspect that there is no real problem of professional responsibility here, because it seems likely to me that in this situation, Gibson Dunn would have consulted with both clients and obtained their consent. Still, it poses an interesting public relations issue.