Concept
Consentable Conflicts
Waiver of an imputed disqualification
Consentable Conflicts
Rule 1.10(c) lets the affected client waive an imputed disqualification, but only "under the conditions stated in Rule 1.7." The waiver therefore faces the same consent standard that governs a conflict held by a single lawyer.1 Rule 1.7(b) sets four conditions for consenting to a direct-adversity or material-limitation conflict:
- The lawyer reasonably believes that the lawyer can provide competent and diligent representation to each affected client.2
- The representation is not prohibited by law.3
- The representation does not involve one client's asserting a claim against another client whom the lawyer represents in the same litigation or other proceeding before a tribunal.4
- Each affected client gives informed consent, confirmed in writing.5
Three of these conditions test the conflict, and the fourth tests the client's agreement. This section takes the three, which together answer a threshold question: does the client have any power to accept this conflict at all? Informed written consent, taken up next, matters only when the answer is yes.
The label waiver invites the opposite assumption, that a client's say-so settles the matter. It does not. No client may consent to a representation so crippled by the lawyer's divided loyalties that the lawyer cannot deliver competent and diligent work.6 Consent lets a client accept a risk that falls on that client, and it protects the client only while the representation can still serve the client's interests. A signature cannot supply skill or energy that competing obligations have drained away, cannot displace a legal prohibition, and cannot make one firm the advocate on both sides of a dispute before a single tribunal. At each of these three points, agreement would stop protecting the person who gives it.
Imputation changes none of this. A conflict that a client could not accept when one lawyer held it does not become acceptable because Rule 1.10 spreads it through the firm; the Rule 1.7 conditions travel with the conflict.7 An exam stem in which an eager client signs a clear written consent still calls for the threshold question first, and the first of the three limits asks what the lawyers can reasonably believe about the work the firm will do.
Competent and Diligent Representation
The first limit looks at the quality of the work. Rule 1.7(b)(1) requires that the lawyer reasonably believe the lawyer will be able to provide competent and diligent representation to each affected client, and a waiver of an imputed conflict stands or falls on that belief.8 Of the three limits, this one does the most work, because no client may agree to a representation that cannot be delivered competently and diligently.
The belief has a subjective part and an objective part, and both must be present. The lawyer must actually hold it, which rules out the lawyer who privately doubts the firm can serve each client and signs the papers anyway. The belief must also be reasonable, meaning a disinterested lawyer looking at the same facts would share it. The consent process uses the same yardstick: the information given to a client in a multiple-client situation includes any material reservations a disinterested lawyer might reasonably harbor about the arrangement if that lawyer were advising only that client.9 The objective part keeps the lawyer's optimism and the client's accommodation from deciding the question.
In an imputed conflict the question narrows. The disqualification has passed from one lawyer to the firm, so the inquiry is whether, notwithstanding the conflict that otherwise would be imputed, the lawyer who will handle the matter can represent each affected client competently and diligently.10 What matters is whether the colleague's conflict reaches the judgment, effort, or independence of the lawyers who will do the work. A client may accept a conflict that a reasonable outside observer would readily see, so long as the handling lawyer stays uncompromised enough that the client still receives effective and zealous advocacy.11 If the colleague's matter is unrelated and the handling lawyers have no stake in its outcome, their work may be untouched. If they share the colleague's exposure, it is not.
An unrelated commercial matter is the ordinary place where the belief is reasonable. A firm lawyer who wants to sue a company that a colleague represents in a separate matter creates a direct-adversity conflict, and the conflict is serious even when no confidences are at risk, because it disturbs each client's expectation of unfettered loyalty.12 Still, when one client is a commercial entity and the matters are neither sensitive nor personal, both clients may be willing to consent, and the lawyers may reasonably believe they can serve each client diligently in the separate matters.13 Once either matter becomes intensely personal to its client, the picture changes: feelings of betrayed loyalty are especially likely, and the lawyer probably should not proceed even with consent.14
Who holds a stake in the outcome separates the commercial pairing from the drafting example. In the commercial pairing, the competing interest belongs to another client, and neither handling lawyer loses anything personally however either matter ends. In the drafting example, the competing interest belongs to the firm itself and reaches, through partnership ties, the very lawyer whose independent advice the client needs. An exam stem that stresses how much the client wants to stay, or how sincerely the lawyer believes all will be well, describes facts that do not satisfy this condition. Ask what a disinterested lawyer would conclude from the remaining facts.
The condition also runs through the life of the representation. Rule 1.7(b)(1) demands that the lawyer always remain able to provide competent and diligent representation.15 Some lawyers believe the client's blessing is enough to overcome any conflict, whatever its actual effect on the quality of the lawyer's work, and that belief is a fallacy.16 A client's consent cannot restore quality the conflict has taken away, so a waiver permits the representation to begin while the lawyer's belief is reasonable and to continue only while it stays reasonable. If events later open a gap between what the lawyer can deliver and what the client needs, the earlier signature no longer carries the representation. The chapter returns to this point when it reaches a client's power to revoke consent.
Prohibited by Law
The second limit looks outside the consent process. Rule 1.7(b)(2) requires that the representation not be prohibited by law.18 If a statute, a court rule, or a similar legal command bars the representation, the analysis ends: the clients' informed and written consents, the lawyers' sincere confidence, and the absence of any risk to confidences no longer matter.
The limit follows from whose interests the prohibition protects. Consent safeguards a person who bears a risk, because that person may decide how much danger to accept. A legal prohibition usually records a public judgment about who may act in a given situation, and the interests behind it often reach past the client to a tribunal, to other parties, or to the public. A client cannot sign away an interest the client does not hold. If a private agreement could override the prohibition, the prohibition would bind only those who preferred to follow it, and the lawyers who profit from the representation would have every reason to collect signatures. Client autonomy is real, but it reaches only the risks that belong to the client.
Remove the statute, and the same adverse representation, backed by the same consents, lies within the clients' power to accept, so the imputed disqualification can be lifted. Only one variable changed the outcome: the legal prohibition. Direct adversity between two firm clients is a kind of conflict that clients may ordinarily consent to, even in unrelated matters,19 so the category does not decide the result. What decides it is whether some law outside the consent process forbids this particular representation.
An exam stem that dwells on the quality of the disclosure and the eagerness of the clients may mention the bar only in passing. Check for a statute, court rule, or similar prohibition before weighing whether consent was informed or confirmed. A yes ends the analysis, however complete the paperwork.
Claims in the Same Proceeding
The third limit asks where the clients would stand if the representation went forward. Rule 1.7(b)(3) makes consent ineffective when the representation involves one client's asserting a claim against another client whom the lawyer represents in the same litigation or other proceeding before a tribunal.21 The first limit asked what a disinterested lawyer would believe about the quality of the work, and the second asked whether some outside law forbids the representation. This one asks whether the clients would face each other in a single proceeding before one decision-maker. If they would, the inquiry ends, however willing the clients are and however confident the lawyers feel.
Comment 17 gives the reason: the conflict is nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal.22 The adversary system depends on counsel loyal to each side developing that side's position, so the tribunal can choose between two fully made cases. A lawyer standing on both sides of one dispute cannot give the tribunal that, however sincere the effort, because each client's position would be shaped by someone also committed to defeating it. The danger therefore reaches past the clients to the tribunal and the public, who signed no consent. Clients cannot give up an interest they do not hold alone, so their agreement, even informed and confirmed in writing, leaves the bar in place.
Imputation carries the bar through the firm's door. A firm acts as a single lawyer for conflict purposes, so giving the plaintiff to one lawyer and the defendant to another down the hall separates nothing: the same firm is on both sides. Because the waiver power in Rule 1.10(c) depends on the Rule 1.7 conditions, and this condition cannot be met, the imputed disqualification cannot be lifted.23 An exam stem built on this limit therefore usually supplies every other element of a valid waiver and asks whether that is enough.
The two scenes share nearly every fact: direct adversity between two clients of one firm, valid consents, and lawyers confident in their own diligence. They differ in whether the clients meet in the same proceeding. In the unrelated suit, each client's position is developed in its own case by a lawyer who answers to that client, so no tribunal sees one firm on both sides. What remains is a threat to each client's expectation of undivided loyalty, and that risk falls on the clients themselves, who may accept it once they are informed and the lawyers reasonably believe each can be served separately.24 In the same-proceeding scene, the remaining risk also falls on the tribunal, which is why the clients' consent cannot reach it. Two errors follow from missing that division: treating every direct adversity as beyond waiver, which wrongly closes off the unrelated-matter case, and treating written consent as a cure for adversity within one proceeding.
Whether the clients stand directly against each other depends on the context of the proceeding, so the caption does not settle the question.25 A plaintiff and a defendant in one case plainly qualify, but parties on the same side of the caption can qualify too. When two defendants, nominally allied against a plaintiff, assert cross-claims against each other, the same firm may not represent both of them, at least with respect to those cross-claims.26 The test follows the direction of the claims, so a firm that sees two clients as allies must still ask whether a claim runs from one of them to the other within the proceeding. The bar reaches at least the cross-claims themselves, and whether the firm may stay in for both on the defense against the plaintiff is a separate matter that the remaining Rule 1.7 conditions decide.