Ethically Speaking
| Publication year | 2011 |
| Pages | 40 |
| Citation | Vol. 34 No. 2 Pg. 40 |
Vol. 34, No. 2, 40. Ethically Speaking
Issue: April, 2011
Carl M.Williams Professor of Law and Ethics
University of Wyoming College of Law
Waiving a Conflict of Interest and Revoking tliat Waiver: Part II - Future Conflicts and Conflicts Involving Former Clients
The last "Ethically Speaking" col-umn addressed waiving and revok-_JL ing waivers of conflicts of interest involving current clients.(fn1) The column ended with the statement that: "There are, of course, many more issues involving the waiver of conflicts and the revocation of such waivers. Three of them, the waiver of conflicts involving former clients, the waiver of future conflicts and the waiver of conflicts involving former prospective clients, will be addressed in the next "Ethically Speaking" column."(fn2) It turned out that addressing all three issues would have made for a very lengthy column, so two of those types of conflicts, those involving future conflicts and conflicts involving former clients are the topic of this column. The third, conflicts involving former prospective clients, will be addressed in the next issue.
There are two reasons for addressing future conflicts, conflicts involving former clients, and conflicts involving former prospective clients in three columns. First, one column that combined these topics with current conflicts would have been far too long. Even two columns turned out to be too few. Second, although conflicts of all kinds and the issues that arise overlap, the conflicts addressed in this column, and those to be discussed in the next issue, are treated significantly differently than conflicts involving current clients.
Future Conflicts
The waiver of potential or even likely future conflicts of interest usually involves current clients, though it could involve a prospective client (as will be discussed in detail in the next column; there is no reason to treat prospective clients differently from clients when it comes to waiving future conflicts of interest). The typical scenario is that a lawyer asks a current client to waive a conflict or conflicts that may arise. While none of the Rules of Professional Conduct ("the Rules") expressly address the waiver of future conflicts, the commentary to Rule 1.7, the general Rule on conflicts involving current clients does. "The effectiveness of such waivers [involving future conflicts] is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails."(fn3) The comment also says that whether a future conflict may be waived, and, if so, the standards that must be met, are "subject to the test" of the provisions that apply to the waiver of concurrent conflicts ("concurrent conflicts" is the name used in the Rules to describe conflicts involving current clients.)(fn4) Deciding whether a concurrent conflict may be waived, and the standards and procedures for obtaining such waivers, was the topic of the last "Ethically Speaking" column (the footnotes are omitted from the following quotation):
Rule 1.7(b) sets out four criteria that must be met before a [concurrent] conflict may be waived .... First, the lawyer 'reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.' Second, 'the representation is not prohibited by law' Third, 'the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.' Finally, 'before proceeding with the representation, each affected client makes an informed decision to waive the conflict, in writing signed by the client.'(fn5)
Accordingly, in determining whether a potential future conflict may be waived, and, if so, what steps should be followed in obtaining such a waiver, a lawyer should follow the provisions of Rule 1.7(b). As with the waiver of any conflict, "[t]he more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding."(fn6) As a result, the specificity of both the explanation and the identification of potential future conflicts will be critical. "If the waiver is general and open-ended, then the waiver ordinarily will be ineffective ... ."(fn7)
The waiver of future conflicts is more likely to be valid if "the client is independently represented by other counsel ... and the waiver is limited to future conflicts unrelated to the subject of the representation."(fn8) Regardless of the specificity of the waiver, the thoroughness of the explanation, and consultation with an independent lawyer, a waiver of future conflicts "cannot be effective if the circumstances that materialize in the future are such as would make the conflict not subject to waiver" under Rule 1.7(b)."(fn9) Finally, as discussed below, any waiver may be revoked.
Former Clients
A conflict involving a former client is both a concurrent conflict under Rule 1.7(b) and a former client conflict under Rule 1.9(a) or (b). First, a concurrent conflict includes a case in which there is "a significant risk" that a lawyer's representation of a client would be "materially limited by the lawyer's responsibilities to ... a former client . . . "(fn10) The lawyer thus must comply with the standards for waiving a concurrent conflict with respect to the new client.(fn11) As discussed below, the lawyer must then comply with Rule 1.9 with respect to the former client.
A lawyer's duties to former clients are different than a lawyer's duties to current clients. Perhaps the most important difference is with respect to the treatment of conflicts of interest.
The Rules do not define when a client-lawyer relationship exists (or no longer exists). Rather, "principles of substantive law external to these Rules determine whether a client-lawyer relationship exists."(fn12) And while the Rules do not define when such a relationship exists, the commentary(fn13) makes it clear that the burden is on the lawyer to clarify whether a person or organization's status with respect to the existence or...
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