I used to think a conflict of interest under Rule 1.9 could only be waived by agreement with the former client and could be raised as a means to disqualify an attorney person at any time. It appears the State Bar plans to change this notion. At its most recent quarterly meeting, the Ethics Committee adopted a new proposed opinion that recognizes that sufficient delay in raising a conflict of interest issue could constitute a waiver of the conflict, and an inability to use it to disqualify opposing counsel. The factors to consider in determining whether the “you snooze, you lose” rule would come into play are: (1) whether the lawyer’s failure to identify the conflict was unintentional, (2) whether the former client knew of the new representation, (3) the length of the delay in lodging the objection, (4) whether there was an opportunity to lodge an objection, (5) whether the former client was represented by counsel during the delay, (6) the reason the delay occurred, and (7) whether disqualification would result in substantial hardship for the new client. I think this proposed opinion is a good one, because it really only targets persons who attempt to use the conflict rules merely as a strategic sword to disqualify counsel and not because the new representation resulted in any prejudice to the former client.
