How to Draft a Conflicts Waiver

Seven rules of the Minnesota Rules of Professional Conduct require that a lawyer obtain “informed consent, confirmed in writing” to proceed with a representation despite an actual or potential conflict of interest. The comments to the rules offer some guidance regarding what types of circumstances one might take into consideration when deciding whether a conflict exists or is waivable, but offer precious little in the way of guidance for actually drafting a conflicts waiver.

“Confirmed in writing,” as explained in the definitions section of the MRPC, means a writing that confirms what was discussed orally about a conflict.The client’s signature is not required, although once you’ve bothered to write something down and send it to the client, it should take little more effort to have the client acknowledge receipt and content by signing the writing or by return e-mail.

What to write is the question. Brevity could be a problem. Merely saying “You agree that we have discussed this conflict and you waived it” does little to preserve your conversation with the client. If the conflict does arise or become unmanageable, the disgruntled client is going to say “Well, she never told me that might happen.”

Some conflicts waivers are written as though the lawyer was being paid by the word, cutting-and-pasting the entirety of Rule 1.7 into a retainer agreement and then say, “you consent to any conflicts.” The client is not expected to understand the rule; the lawyer is supposed to explain it to them. Close behind, sometimes attached to retainer agreements, are generic statements of firm “policies.” Mostly these concern billing but they sometimes include a section in fine print that begins “If this matter involves the representation of more than one client or if we have identified a conflict of interest, you agree . . .”

If there’s one defining characteristic of a good conflicts waiver, it is probably that it bears little resemblance to the last one you drafted. That is because good conflicts waivers are fact-dependent. Sure, you use similar language for common situations such as representing a husband and wife in drafting joint estate plans or for representing multiple victims of a car accident. But most waivers will be tailored to the facts of the particular case. More facts, less filler.

Here are the steps you should take to draft a conflicts waiver:

  • Analyze the situation. Determine how the interests of your clients overlap or collide with each other. Identify the correct ethics rule. Figure out if there even is a conflict. If there’s no conflict, be careful about asking for a waiver when you don’t need one because if the client or former client says no, you’ve now planted an idea in their head. If you proceed anyway, you may draw a disqualification motion or ethics complaint. Even if the motion or complaint seems frivolous to you, it will still need to be defended. On the other hand, remember that some conflicts are not waivable, because no reasonable lawyer would think that you could conduct the representation while completely protecting confidences and acting with undivided loyalty.
  • Explain your analysis to the client. Start writing where you started, by identifying the parties and their relationship to each other. For example, “We represent your bank in real estate transactions. Another of our clients is seeking a line of credit for his business.” Or “One of the witnesses in your case happens to be a client of ours in another matter.”
  • Describe whether there’s already a conflict or not. Joint representations often start off harmoniously; the conflict may be latent. Alternatively, perhaps your joint clients have potential, but remote, cross-claims against each other. Citing an ethics rule number is not by itself important, unless the client is a lawyer and the rule number would help define the scope of the issue.
  • Even where it appears there is no conflict between joint clients, describe how things could go bad. Use your imagination. There’s no need for gloom and doom, but if you come up with a couple of examples of what could go wrong, it helps a client understand what you mean by a “conflict of interest.”
  • Let the client know that it’s on you, the lawyer, to watch out for when the situation has changed and you either need additional disclosure and consent to continue the representation or you will be unable to continue.
  • Lay out the consequences of the conflict ripening and starting to stink. Usually, you will want to warn the client that you will have to withdraw from representation. There could also be costs and delay.
  • Reassure the client that you’ve analyzed all these factors and that you believe it’s reasonable to proceed with the representation. Perhaps that is because the conflict is remote and the clients will save money by using one attorney. Maybe success in a summary judgment motion will make latent cross-claims or witness testimony unnecessary. Perhaps you will set up an ethics screen that assures the client that her confidential information will not be shared with the attorneys in the firm who are working on unrelated transactional matters for the opposing party.
  • Last, get the client’s signature. You’ve just done all this work, you might as well lock it down.

(This article was originally published in the July 2019 issue of Hennepin Lawyer)

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