Can a lawyer get a client to consent in advance to future conflicts of interest, and when does that waiver actually hold up?

Plain-English summary

The opinion addresses advance waivers, agreements by which a client consents up front to conflicts the lawyer may encounter later. When Formal Opinion 93-372 issued in 1993, no Model Rule or Comment expressly addressed consent to future conflicts. The February 2002 amendments restructured Rule 1.7, adding Rule 1.7(b) on consentability and new Comment [22] addressing future-conflict waivers directly.

The committee reads Comment [22] to make effectiveness turn on how well the client understands the material risks. A general, open-ended consent ordinarily will be ineffective, "because it is not reasonably likely that the client will have understood the material risks involved." But such consent is more likely to be effective where the client is an experienced user of the legal services in question, is reasonably informed of the risk, is independently represented by other counsel, and the consent is limited to matters unrelated to the subject of the representation. The committee interprets "unrelated to" by reference to Rule 1.9's "substantially related" standard: matters that do not involve the same transaction or dispute, and where disclosure or use of the client's information would not materially advance the future clients' position.

Because a consent so limited does not raise the confidentiality concerns that were central to 93-372, and because Comment [22] now supports broader open-ended consent for sophisticated clients than 93-372 allowed, the committee concludes that the older opinion's central limitation is inconsistent with the amended Rules. The committee adds two cautions. Advance consent to a future conflict does not, by itself, authorize the lawyer to disclose or use the client's confidential information against the client. And advance consent "cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b)." Opinion 93-372 is withdrawn, with its conclusions consistent with the amended Rules incorporated into this opinion.

In practice

Under this opinion, a lawyer may use a broader advance waiver, but its enforceability depends on the client's sophistication, independent advice, and a scope limited to unrelated future matters. The opinion makes the controlling factors the client's understanding of the risk and the relatedness of the future matter, and it preserves the rule that nonconsentable conflicts cannot be waived in advance. Before acting on an advance consent, the lawyer must still confirm the later conflict is consentable, that the consent was confirmed in writing, and that the new engagement is not barred by Rule 1.7(b), 1.9, or another rule.

Common questions

Q: Can I ask a client to waive future conflicts when I take them on?

A: Yes, within limits. The opinion concludes that "Rule 1.7, as amended in February 2002, permits a lawyer to obtain effective informed consent to a wider range of future conflicts than would have been possible under the Model Rules prior to their amendment."

Q: When is a broad, open-ended waiver actually effective?

A: When the client understands the risk. The opinion explains that "if the consent is general and open-ended, then the consent ordinarily will be ineffective," but it is more likely effective for an experienced, independently represented client when limited to unrelated future matters.

Q: Does a future-conflicts waiver let me use the client's confidential information later?

A: No. The committee concluded that informed consent to a future conflict, without more, does not authorize disclosing or using the client's confidential information against the client.

Q: Can an advance waiver cover a conflict that turns out to be nonconsentable?

A: No. The opinion states that "advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b)."

Background and rules framework

The opinion interprets Model Rule 1.7 (concurrent conflicts), including 1.7(b) on consentability, 1.7(b)(4) on written confirmation, and Comment [22] on future-conflict waivers. It draws the "unrelated to" line from Rule 1.9 and its Comment [3] ("substantially related"), and references Rule 1.6 (confidentiality) and Rule 1.0 (terminology, including "informed consent").

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7, including 1.7(b), 1.7(b)(4), and Comment [22] (concurrent conflicts; advance waivers)
• ABA Model Rule 1.9 and Comment [3] (former clients; "substantially related")
• ABA Model Rule 1.6 (confidentiality)
• ABA Model Rule 1.0 (terminology; "informed consent")

Other opinions cited:

• ABA Formal Op. 93-372 (1993): withdrawn by this opinion

See also

• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• ABA Formal Op. 06-438: Aggregate Settlements
• ABA Formal Op. 479: The "Generally Known" Exception to Former-Client Confidentiality

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 05-436.pdf