The Waiver Rule

Waiving Imputed Disqualification

The Waiver Rule

Imputation treats a firm as a single lawyer. The knowledge of one lawyer is imputed to every other lawyer in the firm, so confidential information that one lawyer holds is regarded as accessible to all.¹ A conflict that disqualifies one lawyer therefore disqualifies the firm. Rule 1.10(c) of the Model Rules of Professional Conduct lets the client undo that result, and it does so in one sentence: "A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7."²

That sentence makes two choices, and the rest of this chapter follows from them. The first choice is who holds the power: the affected client. The firm and the disqualified lawyer both gain when the matter continues, and neither bears the risk that imputation guards against. The Rule gives the decision to the person who would be hurt if that risk ripened, because no one else can accept the danger on that person's behalf.

The second choice is a borrowed standard. Rule 1.10(c) writes no consent test of its own; it points to the conditions for waiver in Rule 1.7(b).³ Those conditions make two demands of every waiver. The lawyer must reasonably believe that, notwithstanding the conflict that would otherwise be imputed, the lawyer will be able to provide competent and diligent representation to each affected client. And each affected client must give informed consent, confirmed in writing.⁴ The general rules on consent also decide when a client may consent at all, what the client must be told, and how the consent is confirmed.⁵ The sections that follow take these demands in turn, starting with consentability, because a client's wish to keep the firm cannot cure a conflict that the rules place beyond consent.

Waiver matters most where imputation would cost a client the lawyer the client prefers. Different lawyers in a firm may have little or no interaction, and confidential information can be screened so that it never reaches the lawyer on the other matter. In that setting the clients may be willing to consent, which removes the effect of imputed disqualification and lets each keep preferred counsel.⁶

A second setting arises when a lawyer in the firm is likely to present testimony that damages the firm's own client. The client may still want the firm. If selecting other available and qualified counsel would not substantially mitigate the harm to the case, the client may give informed consent to the continued representation. That consent must follow the general rules on when consent is permitted, what disclosures the client receives, and how the consent is confirmed.⁷

The managing partner and the tax lawyer both want the firm to keep both matters, which is why neither can speak for the clients. The power sits with the affected clients, and each must give informed consent, confirmed in writing. A memo signed by anyone else changes nothing. The opposite mistake costs just as much. A client who is eager to keep the firm and signs a clear written consent has still waived nothing if Rule 1.7 does not allow a client to accept that conflict, because its conditions govern the waiver on top of the client's willingness.⁸

One boundary marks the edge of this rule. When the imputation problem comes from a current or former government lawyer, Rule 1.11 governs the disqualification of the associated firm, so Rule 1.10(c) does not supply the standard for those firms.⁹