Concurrent Conflicts and Consent Confirmed in Writing
The rule on current-client conflicts has two triggers and one cure, and the cure fails more often on the quality of the disclosure than on the existence of a signature. Every state writes its own version of the rule, and the differences are not cosmetic.
The rule in short
A concurrent conflict exists where one client's interests are directly adverse to another's, or where there is a significant risk that a representation will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or the lawyer's own interests. Some conflicts may be waived by informed consent confirmed in writing; others cannot be waived at all, and the boundary between the two is where most disciplinary trouble begins.
The rule on conflicts between current clients is short, and almost every word in it carries weight. It sets out two situations that count as conflicts, then four conditions that must all hold before a client's consent can cure one. Firms fail on the second half far more often than the first, because identifying a conflict is a records problem and curing it is a judgment problem.
The two triggers, and why they are different
The first trigger is direct adversity. The representation of one client is directly adverse to another current client. The clearest case is suing a current client, and the point that surprises lawyers is that the adversity need not touch the same matter. A firm defending a manufacturer in a products case cannot ordinarily accept a commercial claim against that manufacturer for a different client, even though the two matters share nothing but the identity of the defendant.
The second trigger is material limitation. There is a significant risk that the representation of a client will be materially limited by the lawyer's responsibilities to another client, a former client or a third person, or by the lawyer's own interests. Nothing adverse has to have happened yet. The test asks whether a risk exists that the lawyer's range of advice, or willingness to pursue a course of action, will be narrowed by an outside commitment.
Material limitation is the larger of the two categories and the one more often missed. It captures the lawyer who cannot recommend a settlement structure because it would embarrass another client, the lawyer with a financial stake in the outcome, and the lawyer representing several claimants against a fund that will not satisfy them all. None of these involve a client on the other side of a caption.
Where no consent will work
Consent is not always available. The model text sets out four conditions, and two of them are threshold questions the client has no power to answer. The lawyer must reasonably believe that competent and diligent representation can still be provided to each affected client, and the representation must not be prohibited by law. Where either fails, a signature changes nothing.
The third condition is categorical: one client may not assert a claim against another client represented by the same lawyer in the same litigation or other proceeding before a tribunal. The prohibition is structural. A tribunal cannot receive advocacy from a lawyer who owes loyalty to both sides of the contest in front of it, whatever the parties have agreed between themselves.
What informed consent actually requires
Informed consent is a defined term, and the definition is doing the work. It means agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to that course. A disclosure that announces the existence of a conflict and asks for a signature does not satisfy it.
Adequate information means the specific risks in the specific matter. Which positions will the lawyer be unable to take. What happens to confidential information moving between joint clients. What happens if the joint clients fall out and the lawyer must withdraw from both, leaving each to start again with new counsel and a partly spent budget. The reasonably available alternatives include the plain one: separate counsel.
Disciplinary and disqualification decisions turn far more often on what the client was told than on whether a form was signed. A signed consent that recites the word "conflict" without describing the consequences is treated as evidence that no real disclosure occurred. The document is a record of a conversation; where the conversation did not happen, the record proves the wrong thing.
Confirmed in writing, and what that means
The model rule requires consent confirmed in writing. That is not the same as consent in writing. Confirmation means a writing given to the client, or one the client transmits, that memorializes consent already obtained orally. A lawyer who obtains oral consent and sends a letter recording it that same conversation has complied, provided the writing follows within a reasonable time.
The distinction matters because states diverge here. Some require the client's own signed written consent for conflicts the model rule allows to be confirmed by lawyer letter. Some require the writing before the representation continues rather than within a reasonable time. Some impose additional formalities where the conflict involves the lawyer's financial interest, which is separately regulated. The model text is a model; the operative rule is the one the licensing jurisdiction adopted.
| Situation | Which trigger applies | Consent available |
|---|---|---|
| Suing a current client for another client in an unrelated matter | Direct adversity | Sometimes, if both clients consent and the lawyer reasonably believes each can still be served |
| Two clients on opposite sides of the same lawsuit | Direct adversity | No, in litigation and other proceedings before a tribunal |
| Several claimants sharing an inadequate settlement fund | Material limitation | Sometimes, with disclosure of the allocation problem to each |
| Lawyer holds an equity stake in the counterparty | Material limitation, personal interest | Subject to the separate transactional rule and its formalities |
| Representation forbidden by statute or by a court's own rule | Either | No, because the representation is prohibited by law |
Joint representation and the information problem
Joint representation is the ordinary setting for a consented conflict: two founders forming a company, a driver and a passenger with one insurer, spouses making reciprocal wills. It works when interests are genuinely aligned and fails when they stop being aligned, which is a matter of time in a meaningful share of cases.
The information consequence is the part clients understand least. Among joint clients, there is normally no confidentiality between them as to the shared matter, and the lawyer cannot keep one client's secret from the other while continuing to serve both. That is a different arrangement from the one clients assume, and it should be explained before it becomes concrete. It is also distinct from the position against outsiders, where the duty of confidentiality reaches further than the evidentiary privilege and protects the shared matter as against the rest of the world.
Detecting the conflict before it becomes a motion
A conflicts rule is only as good as the intake system behind it. The check has to run against corporate affiliates, adverse parties, witnesses the firm has represented, and the prior clients of every lateral lawyer, because a past representation raises its own bar under the substantial relationship test applied to former clients. When a lateral arrives with a disabling matter, the question becomes whether the firm can keep the work at all, which turns on how imputation operates and whether a screen is permitted in that jurisdiction.
Where a conflict cannot be cured, the exit is governed by its own rule, and leaving badly creates a second problem on top of the first. The mechanics of a clean departure — court permission where a matter is pending, surrender of the file, refund of unearned fees — belong to the rule on declining or terminating a representation, and a conflict discovered late is one of the recognized grounds for withdrawal rather than an excuse for abandonment.
Points to carry away
- The rule reaches two distinct situations: direct adversity between current clients, and a significant risk of material limitation.
- Directly adverse representation includes suing a current client in an unrelated matter, not merely opposing one in the same case.
- Consent cures a conflict only where the lawyer reasonably believes competent and diligent representation remains possible for each client.
- A representation prohibited by law, or one client asserting a claim against another in the same proceeding, cannot be cured by consent.
- Informed consent requires disclosure of the material risks and the reasonably available alternatives, not a recital that a conflict exists.
- Every state adopts its own conflicts rule, and the writing requirement and its timing vary between them.
Questions readers ask
Can a client waive a conflict before it arises?
Advance waivers are recognized in principle, and their effectiveness turns on how much the client understood at the moment of consent. A general waiver signed by an individual with no separate counsel, covering unnamed future adversaries and unspecified matters, is worth very little. A waiver negotiated by a sophisticated corporate client with in-house counsel, naming the categories of future work and the kinds of adversity contemplated, is far more likely to hold. The distinction is the quality of the information, not the breadth of the language.
What happens if a conflict is discovered after the work has started?
The lawyer must address it immediately, and the ordinary answer is withdrawal from one or both representations unless the conflict can properly be waived. Continuing to act while the conflict is unresolved compounds the problem, because each additional day of work is done under a disability the client has not accepted. Where withdrawal from one matter would materially prejudice that client, withdrawal from both may be required. The choice is not simply which client the firm would prefer to keep.
Does a conflict between two clients disqualify the whole firm?
As a general matter, yes. Conflicts under the current-client rule are imputed to every lawyer associated in a firm, so one lawyer's disability becomes the firm's. The imputation rule contains its own exceptions, chiefly for conflicts that are personal to a particular lawyer and present no significant risk of limiting the representation, and for screened lateral hires in states that permit screening. Those exceptions are narrower than firms tend to assume, and states differ on the screening question.
Sources
- ABA Model Rules of Professional Conduct — Rule 1.7, Conflict of Interest: Current ClientsThe text of the two-part conflict test and the four conditions for a valid waiver.
- ABA Model Rules — Comment on Rule 1.7Explains direct adversity, material limitation, nonconsentable conflicts and advance waivers.
- ABA Model Rules — Rule 1.0, TerminologyDefines informed consent, confirmed in writing, writing, firm and screened.
- ABA Model Rules — Rule 1.10, Imputation of Conflicts of InterestEstablishes that one lawyer's conflict is generally attributed to the entire firm.
- ABA Model Rules — Rule 1.8, Conflict of Interest: Current Clients, Specific RulesThe transactional and personal conflicts governed by their own flat prohibitions and consent formalities.
- State Bar of California — Rules of Professional Conduct, Current RulesAn example of a state text that departs from the model in structure and in the consent formalities it demands.
- ABA Model Rules of Professional Conduct — Table of ContentsThe full model text against which each state's adopted version can be compared.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
