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In other words, is hypocrisy a frowned upon or even a disciplinary matter? Suppose a lawyer has two clients and the circumstances don't warrant a "conflict of interest" problem under the rules of professional conduct. The two clients aren't doing anything related to one another, but on just one question of law it is helpful for one client to argue one way on the question and helpful for the other client to argue the other way on the question.

If a judge or anyone else sees a lawyer trying to have it both ways, is that a problem?

If this is an impossible situation such that this is, by definition, a conflict of interest, imagine the two clients waived the conflict of interest so that the lawyer could represent both of them.

Imagine this sort of dialogue.

  • Tuesday

Lawyer: "Your honor I really think that statutory definition of a week means the time starting from the Monday after the action took place to the Friday following that Monday. Here is the case law on that matter."

  • Wednesday

Lawyer: "Your honor I really think that the statutory definition of a week means from the time the action took place until 7 days following that time. Here is the case law on that matter."

Judge: "Hey, just yesterday you said you thought the statutory definition of a week meant something else when you were representing another client. You sound like a hypocrite to me."

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3 Answers 3

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Not only would it not be unethical to argue both sides of the issue, if the lawyer argued both sides of the issue and won on both sides, this would be proof that the lawyer is an excellent lawyer. Because the victory would be based on the lawyers skills and not on whether the law leans one way or the other.

Speaking of ethics, I believe it would be unethical for a lawyer not to argue on behalf of one of his clients. A lawyer is required to represent each one of his clients zealously. If this means the lawyer has to argue both sides of an issue, as long as there is no conflict of interest between his two clients, then the lawyer must do so.

Our system is an adversarial system. The system is designed to get a just result by having each side argue their own position in an adversarial setting. This means that the opposing lawyer could argue that the first lawyer is arguing both sides of the issue in different cases. However I believe a good judge would find that lawyer's argument to be irrelevant. Because the only arguments that are relevant would be the arguments based on the law and the facts of each individual case. In other words it would not be relevant for the opposing lawyer to argue that this lawyer frequently argues both sides of the case. As long as he is not doing so in this one specific case.

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From Wikipedia:

Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services.

If the individual problems require the interpretation of "abstract legal theories and knowledge" one way today and another way tomorrow that is not hypocrisy; that's practicing law. This is not dissimilar to the way an engineer will choose a box girder bridge here and a suspension bridge there: different situations require different solutions.

There is no hypocrisy involved: a lawyer is not arguing what they believe; they are arguing what their client believes (often in spite of their advice).

The example you offer is not realistic; the statutory definition of a week (if one exists) will be something that is well established in the jurisdiction - it would be like trying to argue that left and right were interchangeable. However, in common usage "week" means both a period of 7 consecutive days and a period of 7 consecutive days starting from a given day (which day? Sunday, Monday?).

Given this, in the context of different cases (or even in different contexts within the same case) it may be a point of dispute about which usage was intended. For example: "I will pay you in the first week of December 2015", does than mean by the 7th (the first 7 days of December), the 5th (the end of the first week (assuming the week starts on a Sunday) or the 12th (the end of the first full week)? All of these are arguable and a lawyer is ethically obliged to argue the one that best serves their client's interests.

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We often have to argue both sides of an issue. Sometimes the law on an issue is unclear or conflicted.

Conflicting pleadings are common.

If A and then B and then C means desired outcome and IF D and not B and the E means the desired outcome

One argues both sides of B all the time.

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