Does Nevada allow a lawyer to obtain a client's advance waiver of future conflicts of interest, and what must the waiver contain?

Plain-English summary

The Committee addressed whether Nevada accepts prospective conflict waivers (also called advance or future conflict waivers) under RPC 1.7, and what such a waiver must contain. A prospective conflict waiver is one in which a lawyer asks a current client to consent now to the lawyer later representing a future client whose interests may be adverse to the current client.

On the first question, the Committee concludes that Nevada RPC 1.7 does not prohibit advance waivers. It traces the doctrine from ABA Formal Opinion 93-372, through the 2002 adoption of Comment 22 to Model Rule 1.7, to ABA Formal Opinion 05-436, and notes that Rule 1.0A lets Nevada consult the Model Rule comments where there is no conflict. The Committee finds no conflict between NRPC 1.7 and Comment 22, and holds that advance waivers can be consistent with NRPC 1.7 if they meet the test of Rule 1.7(b): the conflict must be consentable, and the client must give informed consent confirmed in writing.

On the second question, the Committee declines to prescribe required waiver language, because the inquiry is fact-specific. Drawing on Comment 22, the Restatement, and case law, it explains that a broad, open-ended waiver is ordinarily ineffective, while a waiver is more likely to hold up where the client is sophisticated, is reasonably informed about the risk, is independently represented, and consents to conflicts unrelated to the subject of the current representation. The Committee contrasts Cedar Rapids Bank & Trust Co. v. Mako One Corp. (waiver letter inadequate because it did not explain the risks) with Visa U.S.A., Inc. v. First Data Corp. (waiver upheld where the firm fully explained foreseeable conflicts to a sophisticated client). It also cautions that a client generally cannot waive a future conflict grounded in confidentiality, and that a material change in the scope of representation can invalidate an earlier consent unless the lawyer obtains a new one.

In practice

Under this opinion, a Nevada lawyer may use advance conflict waivers, but their enforceability depends on the same Rule 1.7(b) analysis that governs a present conflict. Per the opinion, the lawyer should assess each client and situation individually, explain the material risks and reasonably available alternatives as fully as possible (with greater detail and client sophistication making the waiver more likely effective), limit the waiver to conflicts unrelated to the current matter, and consider recommending independent counsel. The opinion notes that open-ended waivers are ordinarily ineffective, that confidentiality-based future conflicts generally cannot be waived in advance, and that a material change requires fresh informed consent.

Common questions

Q: Does Nevada allow advance waivers of future conflicts?

A: Yes, conditionally. The opinion concludes that NRPC 1.7 does not prohibit prospective conflict waivers, provided the waiver meets the Rule 1.7(b) requirements for waiving a present conflict.

Q: Is there standard language that makes an advance waiver effective?

A: No. The opinion declines to say what a waiver "must contain," because effectiveness is fact-specific and turns on the comprehensiveness of the disclosure, the client's sophistication, and how closely the actual conflict matches what was disclosed.

Q: Are broad, open-ended waivers enforceable?

A: Ordinarily not. Citing Comment 22 to Model Rule 1.7, the opinion concludes a general, open-ended waiver is ordinarily ineffective because the client is unlikely to have understood the material risks.

Q: Does independent representation matter?

A: It helps. The opinion explains that a waiver is more likely to be effective where the client is a sophisticated user of legal services, is independently represented in giving consent, and consents only to conflicts unrelated to the current representation.

Background and rules framework

The opinion interprets Nevada RPC 1.7 (concurrent conflicts of interest), which corresponds to Model Rule 1.7, using the informed-consent definition in Rule 1.0(e) and the guidance of Rule 1.0A (consulting Model Rule comments). It relies heavily on Comment 22 to Model Rule 1.7 ("Consent to Future Conflicts") and on Rule 1.9 principles for when a client becomes a former client after consent is withdrawn.

Citations and references

Rules of Professional Conduct:

• Nevada RPC 1.7 / Model Rule 1.7 (concurrent conflicts; consent to future conflicts, Comment 22)
• Nevada RPC 1.0(e) (definition of informed consent)
• Nevada RPC 1.9 / Model Rule 1.9 (duties to former clients)

Cases:

• Cedar Rapids Bank & Trust Co. v. Mako One Corp., 919 F.3d 529 (8th Cir. 2019), advance waiver inadequate for failure to explain risks
• Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Cal. 2003), advance waiver upheld after full disclosure to a sophisticated client

Other opinions cited:

• ABA Formal Op. 93-372 (1993) and Formal Op. 05-436 (2005): advance conflict waivers
• Colorado Formal Op. 135 (2018); NYCLA Op. 724 (1998); NYSBA Op. 903 (2012); D.C. Bar Op. 309 (2001)
• Restatement (Third) of the Law Governing Lawyers Sec. 122

See also

• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• NYC Bar Op. 2006-2: Advance Conflict Waivers After Beauty Contests

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/Opinion-58-Prospective-Conflict-Waivers_8-27-21.pdf