Also known as: non-consentable conflict · nonconsentable conflict · nonconsentable conflicts · unwaivable conflicts · nonwaivable conflicts
Written by attorneys · grounded in primary & secondary sources — see below
A concurrent conflict of interest that cannot be cured by client consent. The conflict arises when a lawyer cannot reasonably believe that competent and diligent representation is possible for each affected client or when one current client asserts a claim against another current client in the same litigation or proceeding.
Nathaniel Newman and his daughter Noreen Nguyen were both injured in a car accident. Their lawyer jointly represented them and the insurer in the uninsured-motorist claim. After the insurer paid benefits, it sued the daughter for contribution. The lawyer could not continue representing the father against the daughter because prior joint representation created duties and access to confidential information that made the new adversity non-consentable.
Norton Bank and Navarro Industries were co-plaintiffs in a patent suit represented by the same lawyer. Norton Bank then directed the lawyer to file a cross-claim in the same action accusing Navarro Industries of breaching a licensing agreement. The lawyer could not proceed with the cross-claim because one current client would be asserting a claim against another current client in the same proceeding, rendering the conflict non-consentable even with written waivers.
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A conflict is non-consentable when the lawyer cannot reasonably believe that competent and diligent representation is possible for each client or when one current client asserts a claim against another current client in the same litigation. In those situations consent cannot cure the violation of the duty of loyalty.
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No. Consent is ineffective when the representation would require the lawyer to assert a claim by one current client against another in the same proceeding. The rules treat that direct adversity as non-consentable regardless of waivers.
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The lawyer must withdraw from at least one representation under Rule 1.16(a)(1) because continued representation would violate Rule 1.7. Withdrawal is required even if both clients prefer that the lawyer continue.
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No. Filing a bad-faith counterclaim by the insured against the insurer in the coverage action places one current client directly adverse to another in the same proceeding. That configuration is non-consentable and the lawyer must decline the counterclaim and withdraw if necessary.
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