Concept

Waiver Under Rule 1.7(b)

Consentability and informed consent under Rule 1.7(b)

Waiver Under Rule 1.7(b)

Rule 1.7(a) tells a lawyer when a concurrent conflict of interest exists; Rule 1.7(b) tells the lawyer when that conflict need not end the matter. Paragraph (b) opens: “Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if” the conditions that follow are met.¹ The word “notwithstanding” makes paragraph (a) the starting point and paragraph (b) the exception, so every conflict analysis runs in two steps: find the conflict, then ask whether the lawyer may proceed despite it. A conflict that can satisfy the conditions is consentable; one that cannot is non-consentable.

Rule 1.7(b) sets four conditions:

The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.²
The representation is not prohibited by law.³
The representation does not involve one client asserting a claim against another client represented by the same lawyer in the same litigation or other proceeding before a tribunal.⁴
Each affected client gives informed consent, confirmed in writing.⁵

The conditions are joined by “and,” so they are cumulative. A lawyer who holds a signed consent from every client has satisfied only the fourth, and a failure of any other condition still defeats the representation. The fourth is the only condition the clients control. The other three ask whether the lawyer can serve each client competently, whether other law permits the work, and whether one client would be suing another in a single proceeding, and no client’s agreement can answer those questions.

The label on the conflict changes none of this. Rule 1.7(a) recognizes two kinds of concurrent conflict: representation of one client directly adverse to another (Rule 1.7(a)(1)), and a material limitation on the representation of a client created by another interest or relationship (Rule 1.7(a)(2)).⁶ Rule 1.7(b) applies to a conflict “under paragraph (a)” without distinguishing between them, so the same four conditions govern whichever label fits.⁷ A lawyer who cannot decide how to characterize a conflict therefore asks the same next question either way: is every condition met?

Direct adversity does not, by itself, defeat waiver. Rule 1.7(b)(3) bars one specific form of it, a claim by one client against another client of the same lawyer in the same proceeding, and the other conditions govern the rest.⁸ Suppose a lawyer gives general business advice to Earl’s Rooter, a company that clears tree roots out of drain pipes, but does not represent it in litigation. A motorist whose car collided with an Earl’s truck, driven by an employee, asks the lawyer to take his personal injury case. Representing him would be directly adverse to a current client, so a conflict exists, and it makes no difference that the two matters are unrelated.⁹ The test for non-consentable conflicts asks whether the lawyer would represent parties on opposite sides of the litigation.¹⁰ Because this lawyer would not represent Earl’s Rooter in the injury suit, Rule 1.7(b)(3) does not bar the work outright, and the remaining conditions decide the question.

Consent cannot make up for a lawyer who is actually impaired. Rule 1.7(b)(1) demands that the lawyer always remain able to provide competent and diligent representation. A client may accept a waiver when a formal conflict exists, or when a reasonable outside observer would see conflicting influences, but only if the particular lawyer stays sufficiently uncompromised by competing demands to give the client effective and zealous advocacy.¹¹ That is why the rule pairs one condition the client controls with conditions the client cannot satisfy by agreeing.

The conflicts rules aim at the risk of harm, not at harm itself. Any situation in which another client relationship or a personal interest of the lawyer threatens harm to a client is a conflict, and a lawyer may be disciplined for representing conflicting interests even if the client suffers no harm.¹² A good outcome therefore never substitutes for satisfying the conditions.

Hypothetical Illustration

A lawyer gives Earl’s Rooter general business advice and does not represent it in litigation. A motorist whose car collided with an Earl’s truck asks the lawyer to take his personal injury case. Compare three versions.

In the first, Earl’s also asks the lawyer to defend it in the motorist’s suit. One client would assert a claim against another client of the same lawyer in the same proceeding. Rule 1.7(b)(3) bars the representation, and no consent changes that.¹³

In the second, the lawyer would act only for the motorist. The matters are unrelated, but the conflict is still direct adversity. It is not barred outright, because the lawyer does not represent Earl’s in the suit. The lawyer may proceed if she reasonably believes she can serve both clients competently and diligently, the law does not prohibit the representation, and both Earl’s and the motorist give informed consent, confirmed in writing.

In the third, the facts match the second, but the lawyer never confirms Earl’s agreement in writing. Every other condition is met, and the representation still fails the fourth.

Consent to Concurrent Conflicts

Waiver Under Rule 1.7(b)

Endnotes14