Editor's Note: An attorney mentioned in the below article wrote to NYLJ after publication to state that he has not ever "switched sides" to represent a client's abuser, and to clarify the insinuation that he did so.

Since the #MeToo movement started in 2017, it has featured several incidents of public outrage directed toward lawyers who "switched sides"—specifically, attorneys for accusers who switched to represent the accused.

The first, and largest, scandal started when it was reported that Lisa Bloom, the famous feminist attorney most known for her work on behalf of accusers, was a member of the defense team representing Harvey Weinstein, the disgraced Hollywood mogul accused of sexual abuse by dozens of women. Ms. Bloom's own mother, Gloria Allred, criticized her daughter's side switching: "Had I been asked by Mr. Weinstein to represent him, I would have declined, because I do not represent individuals accused of sex harassment. I only represent those who allege that they are victims of sexual harassment." Ms. Bloom resigned from Weinstein's defense team, and, according to Politico, her firm decided to "no longer represent anybody accused of anything."

More recently, a lesser scandal erupted when the New York Times published a story implicating attorneys David Boies and John Stanley Pottinger, whose firms were both involved in representing accusers against Jeffrey Epstein, the now deceased sex offender. Reportedly, the attorneys were hoodwinked by a man falsely claiming to possess videos acquired by hacking into Mr. Epstein's servers, purportedly capturing some of the world's richest and most powerful men in compromising sexual positions, including rape. Before the apparent hoax collapsed, Mr. Pottinger reportedly raised the possibility of he and Mr. Boies representing the men allegedly caught in the videos, collecting payments from them to ensure that the incriminating evidence would never see the light of day.

Attorneys who choose to represent "both sides" have reputational concerns to consider. But furthermore, side-switching attorneys also must consider certain ethics rules, which provide limitations on the matters an attorney may ethically undertake. In view of these recent public outrages, we take this opportunity to provide a brief refresher on the relevant ethics rules that attorneys who represent both employees and employers should keep in mind. (Sexual misconduct cases do not always take place in the employment context, of course, but we will focus on employment lawyers in this article.)

No Per Se Prohibition, But …

We start with an uncontroversial principle: There is no per se prohibition against an attorney representing both employees and employers. Nor should there be. Many lawyers have long represented both employees and employers, and have found the quality of their representations improved by it. By intimately knowing the strategies used by one side, they are better able to navigate around them when on the other. It is for good reason, in their opinion, that employment lawyers can work on both sides.

But just as there is no absolute prohibition against representing both sides, neither are attorneys free to represent every employee or employer who may offer the opportunity. Ethics rules concerning conflicts of interest and the use of confidential information limit the representations attorneys may ethically undertake in certain circumstances.

Rule 1.7 of the New York Rules of Professional Conduct provides that, absent the client's informed consent, an attorney may not undertake a representation of a client if it involves either simultaneously representing differing interests or a significant risk that the lawyer's professional judgment will be adversely affected by the lawyer's own interests.

At its most basic level, Rule 1.7 prohibits attorneys from representing both sides of the same employment dispute. See Rule 1.7(b)(3) (an attorney may not assert a claim on behalf of one client against another client simultaneously represented by the attorney in the same litigation or other proceeding before a tribunal, even with client consent); Rule 1.9(a) (absent informed consent, an attorney may not represent a client when the attorney previously represented another client materially adverse to the former's interests in the same or a substantially related matter). Thus, to state the obvious, an attorney could not simultaneously represent Harvey Weinstein and one of his accusers. Nor could an attorney represent an accuser against Weinstein and then switch sides and represent Weinstein against the same accuser.

The Rules of Professional Conduct also prohibit an attorney from using a current or former client's confidential information to the disadvantage of the client. See Rule 1.8(b) (confidential information of current clients); Rule 1.9(c) (confidential information of former clients). This rule narrows the universe of matters an employment attorney who represents both sides may ethically undertake. For example, although Lisa Bloom no longer represents Harvey Weinstein in his defense against certain accusers, Rule 1.9(a) bars her from now ethically representing one of those same accusers against him. Suppose a new accuser emerges tomorrow. Even if the new accuser's claim is sufficiently factually distinct to be neither the "same" as nor "substantially related" to the matters in which Ms. Bloom previously served as Weinstein's defense attorney, nonetheless, she may not be able to represent the new accuser against him given the confidential information about him that she presumably learned during her prior representation of him. Under Rule 1.9(c), Ms. Bloom cannot use Weinstein's confidential information against him, absent his informed consent (which, to state the obvious, he is not likely to give).

Lastly, we reach what is probably the most difficult ethical issue an employment attorney may be faced with when representing both employees and employers, implicating even representations with no overlap whatsoever in parties or facts. The issue is, when, if ever, may an attorney argue in favor of a legal position on behalf of one client that is adverse to the interests of another client? For instance, an employee in one case may want to argue that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation (an issue currently before the Supreme Court), while an employer in a different case, involving different parties and facts entirely, may want to argue that Title VII provides no such protections. Can a lawyer represent both parties? In this scenario, maybe not. The American Bar Association's Formal Ethics Opinion No. 93-377 (1993) considered this issue and concluded that, absent the informed consent of all implicated parties, an attorney should not represent a client if there is a substantial risk that the lawyer's advocacy on behalf of that client would create a legal precedent that materially undercuts the position of another client in the same jurisdiction. Similarly, the New York State Bar Association's Ethics Opinion No. 826 (2008) recognized that such "positional" or "issue conflicts" may preclude representation, absent informed consent, if there is a risk of a material limitation on the attorney's advocacy.

Conclusion

To summarize, before undertaking a representation, an attorney should consider:

• Does the matter involve any parties that the attorney or the attorney's firm currently represents or previously represented?
• Does the matter in any way relate to confidential information obtained by the lawyer in connection with another matter?
• Is advocacy of the client's position likely to create a precedent that could undercut another client's position?

If the answer to any of these questions is yes, the attorney would be well advised to take a closer look at the ethical issues.

Milton L. Williams is a partner at Walden Macht & Haran. He served as an Assistant U.S. Attorney (SDNY), an Assistant District Attorney (Manhattan DA's Office), and as the co-chair of the Moreland Commission to Investigate Public Corruption. Derek Borchardt is an associate at the firm.