Are advance or blanket waivers of future conflicts enforceable for an Oregon lawyer, and can a firm rely on them?

Plain-English summary

The opinion addresses two fact patterns and answers both "Yes, qualified." The general principle it states is that nothing in the Oregon RPCs prohibits requesting and obtaining a blanket or advance conflict waiver, so long as the lawyer adequately explains the material risks and reasonably available alternatives; if the requirements for a client waiver are otherwise met, a prospective or advance waiver is generally permissible.

In Question 1, a firm represents Client X against real property owned by Client Y, another current client of the firm represented by a different partner on unrelated matters; both clients signed advance waivers. The opinion applies Oregon RPC 1.7(a) (a current-client conflict, imputed across the firm under RPC 1.10) and RPC 1.7(b)'s four conditions for waiver: competent and diligent representation of each client, not prohibited by law, no requirement to contend for one client what the lawyer must oppose for another, and informed consent confirmed in writing. The opinion concludes the advance waivers are potentially enforceable here, but stresses that the broader the waiver, the greater the disclosure needed; advance waivers "should be no broader than needed," and specificity about foreseeable future conflicts increases enforceability. It also notes the lawyer should give the basis for believing competent representation is possible, flag the possibility of withdrawal if future events make joint representation impossible, and recommend the client seek independent advice (the latter unnecessary for an entity client working through in-house counsel). Client sophistication matters: a sophisticated business client is more likely able to give an enforceable advance waiver than, for example, many criminal-defense or family-law clients.

In Question 2, a lawyer who completed representing former Client S, with a written advance waiver, later represents Client T against whom former Client S may be a witness. The opinion applies Oregon RPC 1.9 to the former-client conflict and concludes the lawyer may proceed only with informed consent in writing from each affected client, evaluated using the same factors as Question 1.

In practice

Under this opinion, an Oregon lawyer or firm that uses advance conflict waivers is on firmer ground when the waiver is specific about the kinds of future conflicts contemplated, the disclosure scales to the breadth of the waiver, and the client is sophisticated enough to understand what is being waived. The opinion concludes a current-client conflict must still satisfy all of RPC 1.7(b)'s conditions, and a former-client conflict must satisfy RPC 1.9, even where an advance waiver exists; the waiver supplies the informed-consent element, not a blanket exemption.

The opinion makes enforceability fact-specific, keyed to the completeness of the lawyer's explanation and the client's capacity to understand the risks.

Common questions

Q: Are blanket or advance conflict waivers allowed in Oregon?

A: Yes, qualified. The opinion concludes nothing in the Oregon RPCs prohibits an advance or blanket waiver as long as the lawyer adequately explains the material risks and reasonably available alternatives and the normal waiver requirements are met.

Q: What makes an advance conflict waiver more likely to be enforceable?

A: The opinion concludes the more specific the waiver is about foreseeable future conflicts, the better; advance waivers should be no broader than needed, the disclosure must scale to the waiver's breadth, and a sophisticated client is more likely able to give an enforceable waiver.

Q: Can a firm rely on advance waivers from two current clients who become adverse?

A: Potentially. In Question 1 the opinion concludes the waivers are potentially enforceable where the conflict is consentable under RPC 1.7(b), but the firm must analyze all four conditions, including that each lawyer can competently and diligently represent their client.

Q: Does an advance waiver from a former client let a lawyer take an adverse matter?

A: The opinion concludes that for a former-client conflict under RPC 1.9, the lawyer may proceed only with informed consent in writing from each affected client, assessed with the same disclosure-and-sophistication factors as a current-client waiver.

Background and rules framework

The opinion interprets Oregon RPC 1.7 (current-client conflicts and waiver), RPC 1.9 (former-client conflicts), RPC 1.10 (imputation within a firm), and the RPC 1.0(g) definition of informed consent. These track Model Rules 1.7, 1.9, and 1.10. It cites OSB Formal Opinions 2005-122 and 2005-128, NYSBA Opinion 990, DC Bar Opinion 309, and Galderma Laboratories, L.P. v. Actavis Mid Atlantic LLC.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts; waiver)
• Oregon RPC 1.9 / Model Rule 1.9 (former-client conflicts)
• Oregon RPC 1.10 / Model Rule 1.10 (imputation)
• Oregon RPC 1.0(g) (informed consent)

Cases:

• Galderma Laboratories, L.P. v. Actavis Mid Atlantic LLC, 927 F. Supp. 2d 390 (N.D. Tex. 2013), enforceability of advance waivers and client sophistication

Other opinions cited:

• OSB Formal Op. 2005-122 (advance waivers) and 2005-128 (imputation)
• NYSBA Ethics Op. 990: informed consent to future conflicts
• DC Bar Ethics Op. 309 (2001): advance conflict waivers

See also

• OSB Ethics Op. 2026-207: Advance Waiver of PC Conflicts
• ABA Formal Op. 05-436: Informed Consent to Future Conflicts
• ABA Formal Op. 95-390: Corporate Family Conflicts

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2025-206.pdf