Also known as:advance conflict waiver · advance waivers · prospective conflict waivers · prospective waivers · advance waivers of conflicts
Written by attorneys · grounded in primary & secondary sources — see below
An agreement by which a client prospectively consents to a lawyer's representation of another client whose interests may become adverse in the future. Such waivers are subject to the same consent requirements that govern conflicts arising after representation begins. They become ineffective when serious adversity develops or when confidentiality risks cannot be adequately managed.
Sources & Authorities
How it applies
Common Examples
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Family Insurer Conflict Arises
Adam Anderson and his wife Anita Ali retained the same firm to pursue uninsured-motorist claims against their insurer after a car accident that also injured their child. The engagement letter contained an advance waiver of any future conflicts among the family members and the insurer. When the insurer later refused coverage and the wife sued the husband for negligent driving, the firm faced disqualification despite the earlier waiver because actual adversity and shared confidential information created unmanageable risks.
Cross-Claim Between Co-Defendants
Alliance Holdings and Azure Solutions hired one firm to defend them jointly in a contract dispute brought by a third party. Their engagement letter included an advance waiver allowing the firm to continue if the two companies later asserted claims against each other. When Azure filed a cross-claim alleging that Alliance had caused the underlying breach, the firm could not represent both sides on the cross-claim even though the clients had signed the prospective waiver.
Put it into practice
Test Yourself
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Practice Questions4
· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Hornbooks
Common questions
Frequently Asked
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When will an advance conflict waiver fail to prevent disqualification?+
An advance waiver becomes ineffective once actual adversity develops between clients and serious confidentiality risks arise. Courts examine whether the lawyer received confidential information from one client that could be used against another and whether the clients' interests have become directly opposed in the same matter.
Supporting sources
Does Model Rule 1.7 permit advance conflict waivers?+
Yes. Comment 22 to Rule 1.7 expressly recognizes that clients may consent in advance to conflicts that may arise in the future. The same informed-consent standards that apply to existing conflicts also govern these prospective agreements.
Supporting sources
Can a lawyer represent both a plaintiff and a defendant in the same litigation under an advance waiver?+
No. Direct opposition in litigation creates a nonwaivable conflict regardless of any advance agreement. The rule prohibits simultaneous representation of parties on opposite sides of the same dispute even when clients purport to consent.
Supporting sources
TortsNegligence · Express assumption of riskNEXTGENFoundational