UNWAIVABLE CONFLICTS OF INTEREST⁰¹

THE RULES OF PROFESSIONAL CONDUCT GENERALLY PERMIT CLIENTS TO CONSENT TO CONFLICTS OF INTEREST, BUT NOT EVERY CONFLICT CAN BE WAIVED.

Written by Kevin Mohr^*

Is there such a thing as an unwaivable conflict of interest in California? California’s current Rules of Professional Conduct ("Rules") became effective on November 1, 2018. Two fundamental principles guided the drafters of the Rules as they relate to conflicts of interest. First, the conflicts rules should not alter the law as it had been developed through case law over many decades. Second, the rules should generally permit a lawyer to represent clients with interests that potentially, or actually conflict, so long as the lawyer has adequately disclosed to the clients the risks and foreseeable adverse consequences of a conflicted representation, and following the disclosure, the clients have provided their written consent. In at least one respect, however, those maxims were in conflict: Although California’s Rules since their inception have explicitly permitted clients to consent to conflicted representations,⁰² the conflicts of interest case law consistently held that in certain situations a lawyer could not represent multiple clients even when the clients were willing to retain the same lawyer. As this brief article explains, the current Rules adhere to the drafters’ guiding principles by incorporating the case law on unwaivable conflicts of interest into the language of the Rules themselves.

There are two general categories of conflict of interest situations that are considered unwaivable. First, there are conflicts that cannot be waived because an informed consent cannot be obtained. This situation can arise either because: (i) the lawyer is unable, because of duties owed to a third person, to provide a disclosure sufficient to render the clients’ consent informed, or (ii) the client is incapable of consenting. A second category includes three conflict situations under which a client’s consent to a conflict would be deemed ineffective even if the lawyer can make adequate disclosure about the conflicted representation’s risks and consequences and the affected clients are willing to consent to that representation. Each category is explicitly recognized in the Rules and is discussed in turn.