Timing of Waiver

Timing of Waiver

A waiver is a decision, and a decision is made at a particular moment. Rule 1.10(c) lets the affected client waive an imputed disqualification "under the conditions stated in Rule 1.7," but it does not say when the waiver must be given or whether it can be withdrawn once given.¹ The answers come from the Rule 1.7 standard that the cross-reference imports: the client must give informed consent, confirmed in writing, and the lawyer must reasonably believe that competent and diligent representation of each affected client is still possible.² Two timing questions follow. May a client consent before any conflict exists? And may a client who has consented later take the consent back?

The questions look in opposite directions, but one idea governs both. When a client consents in advance, the law asks what that client could appreciate before the conflict took shape. When a client revokes, the law asks what the revocation does to the other clients and the lawyer who relied on the consent. Advance waivers come first.

Advance Waivers

Nothing in Rule 1.10(c) requires the conflict to exist when the client agrees to waive it.³ Comment 22 to Rule 1.7 says the consent requirements govern a client's agreement to accept a conflict that may arise in the future in the same way they govern consent given after the conflict appears.⁴ An advance waiver is therefore an ordinary waiver given early and tested against the same conditions. Consent must still be informed and confirmed in writing, and an engagement letter is a natural place to record it.⁵

Informed consent depends on the client understanding the material risks, and that is where advance waivers strain. A conflict that already exists can be described concretely: who the other client is, what the other lawyer is doing, and how the matters could collide. A conflict that has not yet taken shape has no such description, so the client is asked to evaluate a risk that no one can yet point to. An advance waiver therefore stands or falls on the extent to which the client reasonably understood the material risks when agreeing.⁶

Specificity is the first factor. When the waiver identifies the type of other client or the nature of the matters involved, and the client agrees to a type of conflict with which the client is already familiar, the consent ordinarily is effective for that type of conflict.⁷ Consent that is "general and open-ended" ordinarily is ineffective, because it is not reasonably likely that the client understood the material risks.⁸ A named category gives the client something concrete to weigh, while a sweeping clause leaves the client guessing what has been given away. Five features make an advance waiver more likely to hold:

• The waiver identifies the type of other client or the nature of the matters involved.
• The client already knows the type of conflict the waiver covers.
• The client regularly uses the legal services involved and understands that a conflict may arise.
• Independent counsel represented the client in negotiating the waiver.
• The waiver reaches only future conflicts unrelated to the subject of the representation.⁹

These features can offset one another. Even broad wording may be upheld when the client is an experienced user of the legal services involved and is reasonably informed about the risk that a conflict may arise.¹⁰ Experience fills the gap that vague wording leaves, because the client already knows how such conflicts play out, and independent counsel supplies a second reader who answers to the client and not to the firm. A waiver limited to matters unrelated to the client's own representation confines the risk, and a narrower risk is easier to appreciate in advance.

In the imputation setting, this is how an engagement letter can deal with conflicts that arise from other lawyers' work. A lawyer elsewhere in the firm may later take a matter adverse to the client, and Rule 1.10 would impute that lawyer's conflict to everyone at the firm. If the client has already agreed, in terms specific enough to be understood, that the firm may act against it in that kind of matter, the waiver power in Rule 1.10(c) has been exercised before the conflict arises.¹¹

The two letters look alike on the surface, since each says the firm may someday act against the client. They differ in what the client could understand when signing. On an exam, a stem that supplies a sophisticated, separately advised client and a described category points toward an effective waiver, and a stem that supplies a first-time client and a boilerplate sentence points the other way.

Even a valid advance waiver does not settle everything when the conflict finally arrives. Because Rule 1.10(c) incorporates the Rule 1.7 conditions, a conflict that cannot be consented to when it matures is not cured by earlier agreement. In particular, advance consent cannot authorize the firm to assert a claim by one firm client against another in the same proceeding.¹² The advance waiver answers whether the client agreed knowingly. The consentability limits still ask whether the conflict is one that any client may accept.

Revoking a Waiver

A client who has waived an imputed disqualification may take the waiver back. Rule 1.10(c) places the power to waive in the affected client.¹⁴ That client may terminate the lawyer's representation for any reason or none, and as part of the same right may revoke consent to a conflict of interest.¹⁵ The logic is direct: a client who may dismiss the firm outright may also withdraw the narrower permission that lets the firm act on the other side of a conflict.

The harder question is what revocation does to everyone else. The client's consent may be what allowed the firm to act for another client in a matter the imputed conflict would otherwise have barred, and that client may have built its case around the firm. Neither automatic answer works. If revocation always forced the firm to drop the other client, a revoking client could injure someone who did nothing wrong. If revocation never mattered, the client would be held to a consent that no longer exists. Comment 21 to Rule 1.7 therefore says that whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, and it names four:¹⁶

1. The nature of the conflict.
2. Whether the client revoked because of a material change in circumstances.
3. The reasonable expectations of the other clients.
4. Whether material detriment to the other clients or the lawyer would result.

The factors do different work. The second separates a revocation that responds to something real from one that reflects only second thoughts, since a material change means the risk is no longer the one the client accepted. The fourth measures what the firm's withdrawal would cost the other clients and the lawyer. The third lies partly in the firm's own hands, because the information given when consent was sought should have addressed the consequences of a future withdrawal of consent, including, if relevant, that the lawyer would withdraw from representing all clients.¹⁷ A firm that said so at the outset has tempered the other client's expectations, and a firm that said nothing has let them grow.

A revocation driven only by the client's own disappointment shows that the notice of revocation does not decide the question by itself.

A revocation that responds to a real shift in the matter stands on firmer ground, because the risk the client accepted is no longer the risk the client faces.

The two scenes share the same consent and the same adversity. They differ in why the client revoked and in how much the other client stands to lose, and those two facts carry the answer. When the circumstances favor the revoking client, the waiver that lifted the imputed disqualification is gone, and the firm cannot rest on it.

The firm's best protection comes before any revocation. Where a firm fails to obtain written consent at the start of a dual representation, a later conflict or confidentiality problem may force it to withdraw, and seeking consent after the conflict arises is often nearly impossible because of the duties of loyalty and confidentiality.¹⁸ That passage concerns joint representation, but the lesson carries over to a waiver of an imputed conflict: the time to address the consequences of withdrawal is when consent is first sought, which is what Comment 21 contemplates.