How To Write a Good (And Ethical) Conflict Of Interest Waiver
At Lawyers Mutual, we are often asked whether we have a sample conflict of interest waiver the caller can use. Our reply is always “no,” because a conflict of interest waiver is highly specific. It must be tailored to the circumstances of the conflict. We can, however, give some guidance on the type of information that should be included in a conflict of interest waiver to make it more likely to stand up to a challenge.
Remember that not all conflicts are waivable. For example, if the lawyer cannot conclude that he or she will be able to provide competent and diligent representation to each client, then the representation is prohibited. The lawyer cannot even ask for a waiver and cannot provide representation based on the clients’ consent. An obvious example would be where the clients are directly aligned against each other in the same litigation or other proceeding before a tribunal. There are certainly other less obvious scenarios that may present a nonconsentable or nonwaivable conflict of interest.
Remember also that obtaining a waiver from one client will likely require the consent of the other client to the release of his confidential client information, something he may be unwilling to give. If that’s the case, then you will not be able to obtain a waiver.
Rule 1.7 of the North Carolina Rules of Professional Conduct states that each affected client must give informed consent, confirmed in writing. Rule 1.7(b)(4). Rule 1.0(f) defines “Informed Consent” as denoting “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.”
With this definition in mind, what should a good conflict of interest waiver contain?
- Identify the conflict of interest. For example, if representation of the client might be materially limited by your personal interest in not having your client assert a malpractice claim against you, say so.
- Describe the workaround. Tell the client(s) why you believe you can provide competent and diligent representation notwithstanding the existence of a conflict of interest.
- Describe the upside of the client(s) waiving the conflict of interest. Reduced cost might be an upside. For example, not having to bring another lawyer up to speed on the case might be a reason for the client to consent.
- Describe the downside to the client(s) waiving the conflict of interest. If the conflict is a personal interest conflict, a downside may be that despite your best efforts to prevent it, your personal interest might influence your actions.
- Get it in writing. Rule 1.7(b)(4) requires only that the consent be confirmed in writing. “Confirmed in writing” is defined in Rule 1.0(c) as given by the client in writing or a writing that the lawyer promptly transmits to the client confirming an oral informed consent. It’s best to have the client sign the consent, if possible.
- Take it home! You might want to take it home with language something like this: “Having been fully informed of the conflict of interest and [Lawyer’s] reasonable belief that she will be able to provide competent and diligent representation to [Client] notwithstanding the conflict of interest; and further having been informed that [Client] has the right to seek other counsel to represent him/her in [The Matter], [Client] consents to [Lawyer’s] continued representation of him/her in [The Matter].”