Also known as:nonconsentable conflict · non-consentable conflict · non-consentable conflicts · nonconsentable · nonwaivable conflicts · unwaivable conflicts
Written by attorneys · grounded in primary & secondary sources — see below
A concurrent conflict of interest that cannot be cured by informed client consent. The conflict arises when a lawyer cannot reasonably believe she can provide competent and diligent representation to each affected client or when substantive law prohibits the representation.
Sources & Authorities
How it applies
Common Examples
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Insurer and Family Members in Auto Litigation
Nicole Navarro and her insurer jointly retained a firm to pursue uninsured motorist claims after a crash. When discovery revealed that Navarro's husband had been driving negligently, the insurer directed the firm to name him as a defendant. The firm had previously obtained confidential information from the husband during the joint representation. The direct adversity and prior fiduciary duties made the conflict nonconsentable, requiring the firm to withdraw from representing the insurer.
Partnership Dispute and Disciplinary Matter
Nyah Ndlovu represented Nobel Dynamics in a partnership dispute among its owners while also representing owner Neville Norton in a separate bar disciplinary investigation. When Nobel accused Norton of misappropriating client funds and asked Nyah to support his removal, Neville demanded she defend him against the same allegations. The zero-sum positions prevented Nyah from reasonably believing she could competently represent both, rendering the conflict nonconsentable and triggering withdrawal from at least one matter.
Put it into practice
Test Yourself
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Practice Questions5
· 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 does a concurrent conflict become nonconsentable under the rules?+
A concurrent conflict is nonconsentable when the lawyer cannot reasonably believe she can provide competent and diligent representation to each affected client. Direct adversity on the same core factual allegations, such as one client accusing another of misconduct while the lawyer must defend the accused client, creates this barrier even if clients offer consent.
Supporting sources
What must a lawyer do upon identifying a nonconsentable conflict?+
The lawyer must decline the representation or withdraw from at least one matter. Model Rule 1.16(a)(1) requires withdrawal when continued representation would violate the Rules, including Rule 1.7, regardless of client wishes or the absence of a court order.
Supporting sources
Does client consent always cure a conflict involving multiple current clients?+
No. Consent cures only consentable conflicts. When the lawyer cannot reasonably provide competent and diligent representation to all clients because their positions are directly opposed on the same issue, the conflict remains nonconsentable and withdrawal is required.
Supporting sources
Professional ResponsibilityThe client-lawyer relationship · Termination of the client-lawyer relationshipMPREIntermediate