The NYU Center for Labor and Employment Law is in the process of developing initiatives to help address the gap in access to civil counsel for low- and middle-income New Yorkers, particularly those who are ineligible for services through federally funded legal service providers but who still cannot afford to hire an attorney. Through law firm participation in a program providing pro bono representation short of litigation, workers could receive advice, assistance with negotiation, and other services. In conversations with management-side attorneys, as well as some direct services providers, fear of creating positional conflicts among firms representing companies was a reoccurring theme. We believe that it would be highly unlikely that this type of non-litigation representation could create a positional conflict under either the ABA's Model Rules or New York's Rules of Professional Conduct.

ABA's Model Rule 1.7

In the case of the ABA Model Rules, the prohibition against positional conflicts originates in Model Rule 1.7's general prohibition of concurrent conflicts of interest: "A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." Ann. Mod. Rules Prof. Cond. Section 1.7. The annotation to Model Rule 1.7 describes a positional conflict as "when a lawyer's successful advocacy of a client's legal position in one case could be detrimental to the interests of a different client in another case." Ann. Mod. Rules Prof. Cond. Section 1.7.