Applying the Waiver Rule

Applying the Waiver Rule

Rule 1.10(c) lets the affected client waive a disqualification the Rule prescribes, but only "under the conditions stated in Rule 1.7."¹ A firm that wants to rely on that sentence must answer five questions, in this order:

1. Does Rule 1.10(a) impute the conflict to the firm?
2. Does a firm-side exit resolve the imputation without the client's help?
3. Is the conflict one the client may waive at all?
4. Did each affected client give informed consent, confirmed in writing?
5. Would a screen help enforce the waiver?

The order matters because each answer depends on the one before it. No waiver issue exists unless imputation applies, and none remains if the firm can escape imputation on its own. The sequence also splits the work between two protections that guard different interests. Conflicts rules aim at the risk that a lawyer will compromise duties owed to a client, and consent lets the client accept a risk it understands.² A screen answers a different worry, the movement of confidential information between lawyers in the firm. A sound analysis hands each concern to the tool built for it.

The analysis starts with imputation, because without it there is nothing to waive. Under Rule 1.10(a), the knowledge of one lawyer in a firm is imputed to every other lawyer, so confidential information held by one is treated as accessible to all.³ Because the rules aim at the risk of harm and not at actual harm, there is no such thing as a merely "potential" conflict, and a firm cannot wait to see whether anything goes wrong.⁴

Next the firm asks whether it can escape imputation by its own conduct, because an exit that works makes the client's consent unnecessary. Rule 1.10(a) supplies two. One covers a conflict that rests on the prohibited lawyer's personal interest and presents no significant risk to the lawyers who will handle the matter. The other covers a lateral lawyer's prior-firm conflict and requires a timely screen, no share of the fee for the lateral lawyer, and written notice and certifications to the former client. A firm that requests a waiver before checking these exits has skipped the step that might have made the waiver unnecessary. The screening exit never reaches a concurrent conflict, because a screen does not avoid imputation of a conflict involving a current client.

The third question arises only when no exit fits, and it asks whether the conflict is one a client may waive. Because the waiver operates under Rule 1.7, the lawyer must reasonably believe that the firm can provide competent and diligent representation to each affected client despite the conflict that would otherwise be imputed.⁵ The representation also cannot be prohibited by law, and it cannot involve one client's claim against another client of the firm in the same proceeding. These limits describe the conflict itself, so nothing the firm does with forms can change them. A client's eagerness to keep the firm carries no weight at this step, and two clients who sign cheerfully have waived nothing when the conflict lies beyond consent.

Consent comes fourth, and it is the step where firms most often fail. The client must give informed consent, confirmed in writing, and that means the client agrees after the lawyer explains the material risks and the reasonably available alternatives.⁶ A phone call in which the client agrees satisfies the writing requirement once the lawyer sends an email reciting that agreement. The explanation matters because the lawyer's duty of loyalty is the default, and a client can relax it only after learning what is being given up. A notice that tells the client what the firm has done, including a description of a screen, delivers a fact and leaves the decision unmade. The Rule asks whether each client agreed, and a client who never answered has agreed to nothing.

The fifth question asks whether a screen would help enforce a waiver that is already valid. Imputation rests on a presumption that confidential information is available to every lawyer in the firm.⁷ After the clients consent, a screen replaces that presumption with an actual barrier, so that no confidential information passes, deliberately or by accident, between the prohibited lawyer and the lawyers handling the matter. A screen put up as soon as the conflict is identified reinforces the legitimacy of the consent and answers the clients' concern about confidentiality while the firm continues. It does work that consent cannot do, because consent covers the loyalty risk and does nothing to stop information from traveling. It cannot do the work of consent either.

Both scenes begin with the same kind of conflict and the same screen. The first firm collected no consent and leaned on a device that cannot cure a concurrent conflict. The second firm obtained each client's agreement and used the screen for the confidentiality work it can do.

A firm that puts two of its lawyers on opposite sides of one lawsuit shows why the third question comes before the paperwork. Both clients may sign thorough consents, and both lawyers may sincerely believe they can be diligent, yet the disqualification stays. A claim by one firm client against another in the same proceeding falls outside the Rule 1.7 conditions that govern the waiver, and no quality of consent reaches it.⁸