Kansas Bar Journal
Vol. 74 No. 6.
Thinking Ethics: Obtaining Valid Waivers of Conflicts of Interest
Vol. 74 No. 6 June 2005 Thinking Ethics: Obtaining Valid Waivers of Conflicts of Interest By Professor Sheila Reynolds Nonwaivable conflicts
A prerequisite to any client waiver is a "lawyer waiver," that is, a decision by the lawyer that the lawyer will be able to provide adequate representation to the client or clients, despite the conflict.1 That decision is not subjective, but must be made from the objective standpoint of a reasonable lawyer.2 If a reasonable and disinterested lawyer would conclude that one or more of the affected clients should not consent to the conflicted representation, the conflict is nonwaivable. In many situations, the interests of clients are so different that one lawyer cannot advocate the interests of one without impairing the interests of the other. An example is joint representation of co-defendants in a criminal case, whose defenses and plea bargains could render their representation constitutionally ineffective.3 Another example is representation of buyer-seller in a complex real estate transaction, where both parties should receive extensive, independent advice about protection of their rights and interests in the transaction.4 Joint representation of opposing parties in litigated matters is not permitted, even with client consent.5
Consultation with the client
For a client conflict waiver to be valid, a lawyer must consult with the client about the nature of the conflict, communicating enough information for the client truly to appreciate the material and reasonably foreseeable ways that the interests of the client could be adversely impacted by the waiver. The Restatement of Law Governing Lawyers, §122, Comment c(i) explains in detail what information should be discussed, which will vary depending upon the nature of the risks involved. For multiple client situations, examples include:
* the interests of the lawyer and other client giving rise tothe conflict;
* contingent, optional, and tactical considerations and alternative courses of action foreclosed or made less available by the conflict;
* information that will have to be revealed to obtain the consent of the other client or that cannot be kept confidential;
* reservations a disinterested lawyer...