Also known as: nonconsentable conflicts · non-consentable conflict · non-consentable conflicts · unwaivable conflict · nonwaivable conflict
Written by attorneys · grounded in primary & secondary sources — see below
A concurrent conflict of interest that cannot be cured by informed client consent. The lawyer cannot reasonably believe competent and diligent representation remains possible for each affected client, or the representation would require asserting a claim by one current client against another in the same proceeding.
Nestor Navarro and his daughter Nadia were injured in a car accident. Their insurer retained a firm to represent both in an uninsured-motorist claim. When the daughter later sued her father for negligence arising from the same crash, the firm could not continue representing either party. Prior confidential information and fiduciary duties from the joint representation created a nonconsentable conflict that required withdrawal.
Nexus Technologies and Nimbus Cloud jointly retained counsel to defend a products-liability suit. After discovery, Nexus directed counsel to file a cross-claim against Nimbus in the same action alleging a defective component. Because one current client would assert a claim against the other in the identical proceeding, the conflict was nonconsentable regardless of any attempted waivers.
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A conflict is nonconsentable when the lawyer cannot reasonably believe she can provide competent and diligent representation to each client or when one current client asserts a claim against another in the same proceeding. In those situations informed consent cannot cure the problem.
Yes. Rule 1.16(a)(1) requires withdrawal when continued representation would violate the Rules of Professional Conduct. Once a nonconsentable conflict exists, the lawyer must withdraw from at least one representation.
No. The rules treat assertion of a claim by one current client against another in the same proceeding as a structural nonconsentable conflict. Even written waivers from both clients cannot authorize the representation.
When the insured later directs counsel to assert a bad-faith claim against the insurer in the same coverage action, one current client would sue another in the identical proceeding. That posture creates a nonconsentable conflict that consent cannot cure.