13.04. When Client Can Consent to Conflict

If a lawyer identifies a conflict of interest under Rule 1.7 – either a “directly adverse” or a “materially limiting” conflict – the lawyer must determine whether she can continue to represent the client or whether she will have to withdraw.  The lawyer can continue to represent a client even if there is a conflict so long as the affected client(s) “give[] informed consent, confirmed in writing.”[1]  Informed consent means that the lawyer told the client(s) about the conflict and the “reasonably foreseeable ways” that the conflict could impact the client.[2]  In short, it requires the lawyer to disclose the pros and cons of the client consenting to the lawyer proceeding in the representation in spite of the conflict.  All affected clients must consent to the continued representation.  The Rule requires that the consent to the conflict be “confirmed in writing.” [3]  This means that, after discussing the pros and cons and getting client consent, the lawyer must follow up with a letter that confirms the substance of the conversation and that the client has consented to the representation even though there is a conflict.  Note – there is no requirement that the client sign the writing (although it is always a good idea).

Rule 1.7(b) sets out three situations where the conflict is unconsentable (or these might be called unwaivable conflicts), meaning that the conflicts are such that even if the client wanted to consent to them, they cannot. 

The first unconsentable conflict is if the lawyer does not reasonably believe that the lawyer can “provide competent and diligent” representation to the affected client(s).[4]  This requires the lawyer to use discretion in the first instance to determine whether it would be reasonable to believe that conflict would not prevent them from providing competent advice.  So, in the example above, if Lawyer reasonably believed that his representation of Client would not be impacted by the offer of employment from opposing counsel, then (so long as Client gives informed consent), Lawyer can continue with the representation.  Lawyer had better take this conflict evaluation seriously.  If the representation breaks down, and Client files an ethics complaint, the question will be whether a reasonable lawyer evaluating the situation would believe that competence and diligence would not have been compromised. 

The second unconsentable conflict is where the representation is “prohibited by law.”[5]  For example, some states make it unlawful for a lawyer to represent more than one client in a death penalty case.[6]    

The third unconsentable conflict is where the lawyer is asserting a claim by one client against another client in the same matter.  This one is obvious. If a lawyer is representing someone on one side of a matter – litigation or in a transaction – the lawyer (or a member of the lawyer’s firm) cannot also represent the person on the other side of the dispute.

There are also situations where individual states have made a determination that the risk of conflict is so great in certain situations that clients cannot consent to the conflict.  For example, in Mississippi a lawyer cannot represent both a husband and a wife in a divorce action even if it is an uncontested divorce.  The reason is that, regardless of what the parties say, the inherent nature of the proceeding is adversarial.  Here is the rationale:

[T]he interests of the parties to a no-fault divorce are conflicting, inconsistent, diverse, and otherwise discordant, no matter what the parties themselves, as laymen, may believe otherwise.  Common representation entails parallel duties to both parties; and the lawyer, therefore, cannot place the interests of one client above the interest of the other.  Inquiries by one client as to what would be in his best interest if answered would likely involve advice which would not be in the best interest of the other client, i.e., the tax consequences of different modes for the payment of alimony.  If the inquiry was not answered, the lawyer would fail in his duty to “adequately represent the interest” of the inquiring client.  If answered, the interest of the other client would not be adequately represented.[7]

Other states have addressed situations as they arise.  For example, New York says that a lawyer has an unconsentable conflict and cannot represent both the biological mother and the adoptive parents in an adoption matter because the irreconcilably divergent:

It is evident that an attorney for adoptive parents cannot be fully dedicated to achieving the goals of his clients and at the same time be relied upon to ensure that the natural parent’s relinquishment of her rights was knowing, intelligent, and voluntary.  Indeed, that attorney has, at the very least, a strong incentive to persuade her on behalf of his clients that surrender of the child is the best course of action.[8] 

To sum up:  in most situations, even if a lawyer identifies that a conflict to interest exists, if the affected clients give informed consent (that is confirmed in writing), the lawyer can continue the representation.  However, in making the determination of whether it is proper to continue the representation despite the conflict, the lawyer must consider the three scenarios in which the conflict cannot be waived by the client. 

[1] ABA Rule 1.7(b)(4).

[2] ABA Rule 1.7, Comment [18].

[3] ABA Rule 1.7(b)(4). 

[4] ABA Rule 1.7(b)(1).

[5] ABA Rule 1.7(b)(2)

[6] ABA Rule 1.7, Comment [16].

[7] Miss. State Bar Ass’n Ethics Opinion No. 80: Conflict of Interest – representation of multiple clients in a no-fault divorce (1983).

[8] Matter of Adoption of Male Infant D., 523 N.Y.S. 2d 369 (N.Y. Family Ct. 1987).