Conflict Waivers: When Clients Change Their Mind
April 7, 2015
In a prior blog, we discussed how to draft an effective written conflict waiver. You may recall that an effective waiver, at a minimum, should be in writing – preferably signed by the client, describe the circumstances of representation, clearly address any conflict that exists or is foreseen, address the issue of confidentiality, and advise the client to seek independent counsel. Once you have a signed conflict waiver from your client, what happens if a client changes his mind and tries to revoke that waiver. Can he? Is the lawyer required to withdraw from representing the other affected client?
2007 FEO 11 provides some guidance on this issue. Although a client may revoke consent to a conflict or potential conflict for any reason, a lawyer may not necessarily have to withdraw from representing the other affected client. The opinion cites the Restatement of the Law Governing Lawyers, which “indicates that if one client revokes his consent to representation without good reason, the lawyer may continue representing the other client in the matter if the lawyer and other client have already relied on the consent to their detriment.” A client may be justified in revoking consent where there is a material change in circumstances, or a conflict arises which was in no way contemplated by the parties at the time the consent was signed. A lawyer may have detrimentally relied upon the consent if a substantial amount of time has been spent preparing for the other matter, the lawyer has already shared confidential information permitted by the consent, or other opportunities for representation were passed upon in reliance upon continued representation.
Ultimately, the ethics opinion holds that “[i]n the absence of specific language in the consent agreement addressing the effects of repudiation, a lawyer is not required to withdraw from representing one client if the other client revokes consent without good reason and an evaluation of the factors set out in comment  and the Restatement favors continued representation.” Such factors include (1) the nature of the conflict, (2) whether the client revoked consent because of a material change in circumstances, (3) the reasonable expectations of the other client, and (4) whether material detriment to the other client or the lawyer would result.
A lawyer acts ethically if he follows these guidelines in deciding that he may remain in a case; however, a court may ultimately weigh the equities of the situation and reach a different result. The fact that a court did not agree with the lawyer’s determination in this regard, does not necessarily mean that the lawyer has violated any ethics rules.