Also known as: non-consentable conflict · nonconsentable conflict · non consentable conflicts · non-consentable conflicts · unwaivable conflict · non-waivable conflict
Written by attorneys · grounded in primary & secondary sources — see below
A concurrent conflict of interest that cannot be cured by client consent. The lawyer cannot reasonably believe that competent and diligent representation remains possible for each affected client because the duties owed to one client are directly adverse to those owed to another in the same proceeding.
Norman Nash and his insurer jointly retained counsel in an uninsured-motorist suit arising from a family car accident. After the insurer settled with the other driver, that driver sued Norman for contribution. Counsel could not continue representing both the insurer and Norman because the insurer now sought to shift liability onto its former insured in the same litigation.
Nimbus Cloud and Norton Bank jointly retained counsel as co-plaintiffs in a patent suit. Nimbus later directed counsel to file a cross-claim in that same action alleging that Norton Bank had breached a licensing agreement. Counsel could not file the cross-claim because one current client would be asserting a claim against another current client in the identical proceeding.
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A concurrent conflict is nonconsentable when the lawyer cannot reasonably believe that competent and diligent representation can be provided to each affected client. Direct adversity between current clients in the same proceeding, such as one client suing another, creates this structural bar even if both clients offer written consent.
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No. When one current client seeks to assert a claim against another current client in the same litigation or tribunal proceeding, the conflict is nonconsentable regardless of informed written consent from both clients. The lawyer must decline the claim and withdraw from at least one representation.
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The lawyer must withdraw from one or both representations under Rule 1.16(a)(1) because continued representation would violate Rule 1.7. Withdrawal is required even if the clients prefer to continue and even without a prior court order.
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