Can a North Carolina lawyer get a client to waive in advance a conflict of interest that has not yet arisen?

Plain-English summary

The inquiry asked, in light of ABA Formal Opinion 93-372, whether a North Carolina lawyer may obtain an advance waiver of future conflicts from a client or prospective client. The opinion noted that Model Rule 1.7 is substantially identical to North Carolina Rule 5.1(a) and (b).

The opinion concluded that an advance waiver is permissible if four conditions, drawn from ABA Formal Opinion 93-372, are met: (1) the prospective waiver is in writing; (2) although the future conflict need not be known to exist at the time of the waiver, the writing must demonstrate that the conflict, when it arises, was within the parties' contemplation; (3) it must be patently clear that the existing representation will not be adversely affected by the subsequent representation; and (4) the subsequent representation will not result in disclosure or use of information imparted by the client in the existing representation or any later representation of that client. The opinion adopted ABA Formal Opinion 93-372 by reference.

On the second question, the opinion concluded that a waiver will be effective if those conditions were met when the written waiver was executed and, when a conflict later arises, it was contemplated by the parties at execution, the existing representation is not adversely affected by the subsequent representation, and the subsequent representation does not disclose or use the confidential information of the client who gave the waiver.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer obtain a waiver of a conflict that has not happened yet?

A: Yes. The opinion concluded that an advance waiver of a future conflict is permissible if the four conditions adopted from ABA Formal Opinion 93-372 are satisfied.

Q: What are the conditions for a valid advance waiver?

A: The opinion required that the waiver be in writing, that the writing show the future conflict was within the parties' contemplation, that it be patently clear the existing representation will not be adversely affected, and that the later representation not disclose or use the client's confidential information.

Q: When is the advance waiver actually effective?

A: The opinion concluded the waiver is effective if its conditions were met at execution and, when the conflict arises, it was contemplated by the parties, the existing representation is not adversely affected, and the later representation does not disclose or use the waiving client's confidential information.

Background and rules framework

The opinion interpreted North Carolina Rule 5.1(a) and (b), the conflict-of-interest provision the opinion described as substantially identical to Model Rule 1.7. Rather than craft an independent standard, it adopted by reference the four-part framework of ABA Formal Opinion 93-372 for advance waivers of future conflicts.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; current client)
• North Carolina Rule 5.1(a), (b)

Other opinions cited:

• ABA Formal Opinion 93-372 (advance waivers of future conflicts; adopted by reference)

See also

• NC Ethics Op. RPC 170: joint representation of injured party and subrogated carrier
• NC Ethics Op. 99 Formal Op. 8: escrow agreement and future-conflict waiver
• NC Ethics Op. RPC 177: representing the insured, insurer, and UIM carrier

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-168/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Editor's Note: This opinion was originally published as RPC 168 (Revised).

Inquiry #1:

The ABA recently issued Formal Opinion 93-372 allowing waivers of future conflicts of interest under certain circumstances. The ABA Model Rules address conflicts of interest in Model Rule 1.7. Model Rule 1.7 is substantially identical to Rule 5.1(a) and (b) of the North Carolina Rules of Professional Conduct. Is it permissible for a North Carolina lawyer to obtain an advance waiver of future conflicts from a client or prospective client?

Opinion #1:

Yes, it is permissible provided the following conditions, which are set forth and explained in ABA Formal Opinion 93-372, are met:

1) The prospective waiver of a future conflict of interest is in writing;

2) Although the future conflict may not be known to exist at the time of the waiver, the writing must demonstrate that the future conflict, when it arises, was within the contemplation of the parties;

3) It must be patently clear that the existing representation will not be adversely affected by the subsequent representation; and

4) The subsequent representation will not result in disclosure or use of information imparted by the client in the representation existing at the time of the waiver, or any subsequent representation of that client.

ABA Formal Opinion 93-372 is hereby adopted by reference.

Inquiry #2:

If a waiver of future conflicts of interest is obtained from a client or a prospective client, will it be effective?

Opinion #2:

Yes, if the conditions set forth in Opinion #1 were met at the time the written waiver was executed and, if a conflict subsequently arises, the conflict was contemplated by the parties at the time the written waiver was executed, the existing representation will not be adversely affected by the subsequent representation, and the subsequent representation will not result in the disclosure or use of confidential information of the client giving the waiver.