Can a client sign an advance consent agreement waiving any future objection to the lawyer later representing an adverse party?

Plain-English summary

The lawyer had represented an individual client and a corporation owned by the lawyer's wife, and the individual client had signed an agreement consenting to the joint representation. That former client later objected to the lawyer's continued representation of the corporation in a dispute between them. The committee was of the opinion that, at the time the agreement was reached between the two clients, the lawyer was acting as an intermediary as that term is used in RPC 2.2. Because the lawyer was no longer representing the party adverse to the wife's corporation, RPC 1.9 (duties to former clients) now applied.

The committee was of the opinion that a lawyer may not prospectively enter into a consent agreement in which a client waives any future objection to continued representation of an adverse party, even where the conflict was specifically identified in advance and the client had the opportunity for consultation. Assuming the lawyer had complied with the rules in good faith, the committee nonetheless concluded that a lawyer must have the consent of a former client to representation of an adverse interest at the time the conflict arises.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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. The intermediary rule the committee applied, RPC 2.2, was later eliminated from the rules.

Common questions

Q: Can a client waive future conflict objections in advance?

A: Under this 1989 opinion, no. The committee said a lawyer may not prospectively obtain a waiver of all future objection to representing an adverse party.

Q: Did it matter that the conflict was identified ahead of time?

A: No. The committee said the advance consent failed even where the conflict was specifically identified and the client had a chance to consult.

Q: When must the former client's consent be obtained?

A: At the time the conflict arises. The committee required contemporaneous consent under RPC 1.9, not a prospective waiver.

Background and rules framework

RPC 1.9, Washington's version of ABA Model Rule 1.9, governs a lawyer's duties to former clients and conditions adverse representation on the former client's informed consent. RPC 2.2, Washington's then-existing intermediary rule (later eliminated from the Model Rules), framed the lawyer's earlier role in arranging the joint representation. The committee held that consent under RPC 1.9 had to be contemporaneous with the conflict rather than secured in advance.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.9 (duties to former clients)
• ABA Model Rule 2.2 (intermediary; later eliminated)
• Washington RPC 1.9; RPC 2.2

See also

• WA Ethics Op. 1268: Legislator-Lawyer Suing the State
• WA Ethics Op. 1248: Calling a Spouse as a Witness

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=347

Original opinion text

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

The Committee reviewed your inquiry concerning the agreement signed by your former client consenting to your representation of himself and a corporation owned by your wife, and his present objection to your continued representation of the corporation in a dispute between them. The Committee was of the opinion that at the time the agreement was reached between your two clients, you were acting as an intermediary as that term is used in RPC 2.2. However, now that you are no longer representing the party adverse to your wife's corporation, RPC 1.9 applies.

The Committee was of the opinion that a lawyer may not prospectively enter into a consent agreement in which a client waives any future objection to continued representation of an adverse party, even where the conflict was specifically identified in advance and the client had the opportunity for consultation. The Committee reached this decision with the assumption that you had fully complied with the rules in good faith, but was of the opinion that a lawyer must have the consent of a former client to representation of an adverse interest at the time the conflict arises.