Can a client who waived a conflict of interest later take the waiver back, and what happens to the lawyer's representations if it does?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 317 (adopted November 2002) addresses what happens when a client who waived its lawyer's conflict of interest later repudiates the waiver. A firm wanted to represent two bidders in a federal agency's licensing auction. One client consented; the other initially refused but, after a weekend, agreed to waive. Two months later the second client tried to withdraw its consent, saying the waiver was "sent in the heat of the moment." The opinion first confirms which conflicts are waivable in D.C.: Rule 1.7(a) bars a waiver letting a lawyer take adverse positions for two clients in the same matter, but Rule 1.7(b) conflicts may be waived after the full disclosure, consultation, and consent required by Rule 1.7(c), and advance waivers are possible (Opinion 309), as are former-client waivers under Rule 1.9.
On revocation, the opinion notes the Restatement (section 122, comment f) and the 2002 Model Rules treat a waiver as revocable at any time (like the client's right to discharge a lawyer), though adverse consequences may follow. The Committee declines to decide the "metaphysical" question of whether a waiver is irrevocable or revocable-with-consequences. Instead it focuses on the operative question: once the client's change of heart is communicated, may, or must, the lawyer withdraw from one or both representations? The opinion identifies the central factor as reliance, drawing on the Restatement's examples (substantial time and money invested, confidential information disclosed by the non-revoking client, a relationship of trust developed, or opportunities forgone). It observes that the lawyer's acceptance of, and work for, the other client, especially under an advance waiver, will usually itself constitute reliance.
The opinion then maps Rule 1.16 onto the situation. A repudiation may amount to a discharge of the lawyer by the revoking client, which requires withdrawal from that client (Rule 1.16(a)(3)); continuing an unwaived conflict would violate Rule 1.7 and require withdrawal from at least one representation (Rule 1.16(a)(1)); and permissive withdrawal may rest on no material adverse effect (Rule 1.16(b); Opinion 272), the client's failure to fulfill an obligation, obdurate or vexatious conduct, or "other good cause." It also notes the "thrust-upon" safe harbor of Rule 1.7(d) may let the lawyer keep both representations where the revived conflict was not reasonably foreseeable and does not involve "punch pulling." The conclusion: if there was detrimental reliance, the lawyer ordinarily continues with the non-revoking client and withdraws from the repudiating one; if there was no reliance (expected to be rare), everyone is restored to the status quo and the lawyer redoes the original conflicts analysis. The opinion repeatedly recommends addressing repudiation in advance and in writing.
In practice
Under the D.C. rules as they stood at the time of the opinion, the opinion concludes a client may revoke a conflict waiver, but the lawyer is not necessarily required to drop the other representation. Where another client or the lawyer relied on the waiver to their detriment, the opinion concludes the lawyer ordinarily should keep representing the non-revoking client and may, or must, withdraw from the repudiating client under the various provisions of Rule 1.16. The opinion notes that beginning work for the other client typically itself counts as reliance, so true no-reliance cases should be rare.
The opinion concludes the better course is preventive: address a possible change of heart in the engagement letter or waiver itself, ideally in writing, specifying whether the lawyer may continue representing the other clients if the waiver is repudiated. It also flags the Rule 1.7(d) "thrust-upon" safe harbor as a path to continuing both representations in narrow circumstances. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Can a client take back a conflict waiver it already gave?
A: The opinion concludes a client can change its mind, but the revocation does not automatically restore the prior situation; the consequences depend largely on whether another client or the lawyer relied on the waiver.
Q: If a client repudiates, does the lawyer have to drop everyone?
A: The opinion concludes that where there has been detrimental reliance, the lawyer ordinarily should continue representing the non-revoking client and withdraw from the repudiating client, rather than withdraw from both.
Q: What lets the lawyer withdraw from the repudiating client?
A: The opinion concludes withdrawal may rest on several Rule 1.16 grounds: the repudiation as a discharge (1.16(a)(3)), avoiding an unwaived-conflict violation (1.16(a)(1)), no material adverse effect (1.16(b)), failure to fulfill an obligation, obdurate or vexatious conduct, or other good cause.
Q: How can a lawyer avoid this uncertainty?
A: The opinion concludes the best approach is to address a possible change of heart in advance and in writing, specifying whether the lawyer may keep representing the other clients if the waiver is later repudiated.
Background and rules framework
The opinion interprets D.C. Rule 1.7 (conflict of interest, including the waivable (b) conflicts, the consent requirements of (c), and the "thrust-upon" safe harbor of (d)), Rule 1.9 (former-client conflicts and waivers), and Rule 1.16 (declining or terminating representation, both mandatory and permissive grounds). It draws on the Restatement of the Law Governing Lawyers (sections 122 and 132), the 2002 Model Rule 1.7 comment [21], Griva v. Davison, 637 A.2d 830 (D.C. 1994), and prior D.C. Opinions 272, 292, and 309.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest; waiver; "thrust-upon" conflicts)
- D.C. RPC 1.9 / Model Rule 1.9 (former-client conflicts and waivers)
- D.C. RPC 1.16 / Model Rule 1.16 (mandatory and permissive withdrawal)
Cases:
- Griva v. Davison, 637 A.2d 830 (D.C. 1994) (consent to dual representation may be revocable when a conflict arises)
- Zador Corp., N.V. v. Kwan, 37 Cal. Rptr. 2d 754 (App. 1995) (detailed waiver bound the former client; delay relevant to disqualification)
- Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339 (9th Cir. 1981) (revocation does not preclude continued representation where the firm and other client relied)
Other opinions cited:
- D.C. Ethics Opinions 272, 292, 309; Model Rule 1.7 comment [21] (2002); Restatement sections 122, 132
See also
- ABA Formal Op. 05-436: Informed Consent to Future Conflicts of Interest
- DC Ethics Op. 356: Unidentifiable and Thrust-Upon Conflicts
- DC Ethics Op. 343: Limiting Scope to Avoid a Former-Client Conflict
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-317
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