By David C. Carr
It is a truism that lawyers are often better at protecting their clients than protecting themselves. One area that illustrates this is what are colloquially referred to as “conflict waivers.”
The California Rules of Professional Conduct use the term “conflicts” but not the term “conflict waiver.” The precise technical terms used in the Rules are “informed consent” and “informed written consent.” And they are precisely defined by Rule 1.0.1(e) and (e)-1:
“(e) ‘Informed consent’ means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.”
“(e-1) ‘Informed written consent’ means that the disclosures and the consent required by paragraph (e) must be in writing.”
This fulsome definitions shows why the term “conflict waiver” does not adequately define the substance of what is required. And it is required by the Rules in many situations, including Rule 1.7 (conflict of interest — current clients), Rule 1.9 (duties owed to prior clients), Rule 1.8.2 (use of current client’s information), Rule 1.8.6 (compensation from one other than the client), Rule 1.8.7 (aggregate settlements), and Rule 1.18 (prospective clients.) Rule 1.6 (confidential information) requires “informed consent” to disclose confidential information but does not require it to be in writing (although getting it in writing is a very good idea.) In a broader context, Rule 1.4(a)(1) requires that a lawyer “promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by these rules or the State Bar Act.”
Given the specific definition of informed written consent, it is surprising how many “conflict waivers” fail to meet its demands. The problem is that many lawyers seem to approach the topic as a mere speed bump on the road to representation, a technical requirement that can be met with boilerplate language from a form book or borrowed from some other lawyer. Especially problematic is the requirement that the relevant circumstances be disclosed. Many informed written consents (let’s call them that) are deficient because they do not adequately set forth all the relevant circumstances, even as they contain boilerplate language that mostly addresses the reasonably foreseeable consequences of the proposed course of action.
Often, especially in joint representation situations, the need for informed written consent is not recognized. This is part of the problem in referring to these documents as “conflict waivers.” The lawyer will say that informed written consent was unnecessary because “there was no conflict” or “the clients’ interests were aligned.” Joint representation almost always requires informed written consent. At a minimum, jointly represented clients must be advised of at least two aspects of joint representation: (1) that there is no client confidentiality as between them (see Evidence Code section 962); and (2) what happens in the future if the clients’ interests do become adverse. But even this is not enough: effective “conflict waivers” require disclosure of all the reasons why the proposed course of action is a bad idea.
These two problems are related because the lawyer might have to testify about communications from one jointly represented client in an action initiated by the other jointly represented client. It is always reasonably foreseeable that jointly represented clients may become adverse to each other. That adversity may have nothing to do with the matter that lawyer is handling. Still, it presents a problem because of the duty of loyalty that the lawyer owes to each client. This duty prevents joint representation without informed written consent even if the adversity is unrelated to the representation (see Flatt v. Superior Court (1994) 9 Cal.4th 275, 284: “Even though the simultaneous representations may have nothing in common, and there is no risk that confidences to which counsel is a party in the one case have any relation to the other matter, disqualification may nevertheless be required. Indeed, in all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or “automatic one.”)
While disqualification is the remedy most often discussed in case law, discipline cannot be ruled out when informed written consent is inadequate or wholly missing. The State Bar’s discipline prosecution office, the Office of Chief Trial Counsel, has become more active in recent years in investigating and prosecuting lawyers who fail to obtain informed written consent as required by the Rules of Professional Conduct.
Conflicts are also fertile ground for legal malpractice claims. As a legal ethics expert, I have often been called upon to opine as to the adequacy of a lawyer’s informed written consent document in malpractice litigation.
There are two lessons that need to be taken to heart. One is to recognize the situations where informed written consent is required. This requires a working knowledge of the California Rules of Professional Conduct. The second is to treat informed consent as a process that requires conscious thought and thorough attention, not just a search for some boilerplate language to meet a technical requirement.