The Rule 1.7(a) test that gets you to the waiver question
Before any attorney can consider a waiver for a conflict of interest, Rule 1.7(a) of the Model Rules of Professional Conduct sets the stage. This threshold test prevents a lawyer from representing a client if that representation is directly adverse to another current client, or if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a personal interest.
Direct adversity is usually clear. If you represent both sides in a contract negotiation or litigation, the conflict is direct and obvious. Material limitation involves subtler territory. If your ability, loyalty, or independent judgment for one client might be compromised by obligations to another, the rule's bar is met. Only after crossing this threshold do you move to the question of whether a conflict is "consentable", that is, whether it can be waived with informed, written consent.
This two-part test is not a formality. Many small firm lawyers use a checklist at intake, but the critical analysis comes down to your knowledge of the facts and the parties involved. The Model Rules do not carve out exceptions for solo practitioners or small offices. Every engagement, no matter how routine, must clear this initial hurdle.
Keep reading: Eight Conflict Check Mistakes That Get Solo Firms Disqualified
Your reasonable belief in competent and diligent representation
Rule 1.7(b) sets four conditions that must all be satisfied before a conflict can be waived. The first two are often judgment calls. The lawyer must reasonably believe that they can provide competent and diligent representation to each affected client. This belief is not simply a personal conviction. It is judged by an objective standard: would another lawyer in your shoes agree that you can handle the work for each client, given the conflict?
Competence involves more than legal knowledge. It includes an honest assessment of whether the conflict will interfere with your ability to advocate zealously for each client. Diligence means you must be able to pursue each client's interests with energy and thoroughness. If the conflict will impair your advocacy, even with consent, the conflict is not consentable.
Assessing Reasonableness
When making this call, consider the nature of the conflict. Are the clients' interests merely divergent, or are they directly opposed? Will confidential information obtained from one client be relevant to the other? If representing both clients would require you to pull your punches or compromise your strategy, you may not reasonably believe you can represent both.
State bar opinions often note that solo and small firm lawyers are sometimes more exposed to conflicts involving family, business, or long-standing clients. The pressure to accept a waiver can be real, but the rule requires you to step back and assess the risk from a neutral standpoint.
Conflicts a lawyer may not ask any client to waive
Some conflicts are strictly off-limits, no matter how informed or sophisticated your clients may be. Rule 1.7(b)(3) makes this explicit: an attorney may not ask for consent where the law prohibits the representation. Certain conflicts are deemed so serious that no waiver can cure them.
Examples include statutory prohibitions, such as those barring representation of clients with directly adverse interests in the same matter before a tribunal. In some situations, local court rules or agency regulations impose additional restrictions. When statute or regulation says a conflict is non-waivable, no amount of client agreement or disclosure will change the outcome.
In criminal cases, for instance, courts are especially wary of joint representation, even when clients ask for it. The risk of ineffective assistance of counsel or divided loyalty is too high. In civil matters, some state ethics rules are more stringent than the Model Rules, making certain conflicts nonconsentable even if the clients would prefer to proceed.
Keep reading: The Substantial Relationship Test in a Motion to Disqualify
Claims by one client against another in the same proceeding
One of the clearest examples of a nonconsentable conflict is when a lawyer is asked to represent two clients who have claims against each other in the same litigation or proceeding. Rule 1.7(b)(3) singles out this scenario: a lawyer may not represent opposing parties in the same lawsuit, even if both clients are willing to sign a waiver.
The rationale is practical. The lawyer would be forced to argue for one client against another, undermining the duty of loyalty and the obligation to maintain client confidences. The adversarial system requires each side to have an undivided advocate. No written consent can fix this inherent contradiction.
This rule applies even in non-adversarial matters such as arbitration, mediation, or administrative hearings. If two clients become opponents in a proceeding where you represent both, continuing for either is generally prohibited. Courts rarely make exceptions, even with robust disclosures and sophisticated parties.
What informed consent confirmed in writing actually contains
Assuming you have a consentable conflict, and you reasonably believe you can represent both clients competently and diligently, the next hurdle is obtaining "informed consent, confirmed in writing." This requirement is not satisfied by a signature on a generic waiver form. The consent must be informed, and the writing must reflect the actual risks and alternatives.
A proper informed consent document will describe the nature of the conflict, the potential risks, the ways the conflict could affect your representation, and the options available to the client, including the right to seek independent counsel. The explanation should be specific to the facts and parties involved. Boilerplate language is rarely adequate.
Written confirmation can take the form of a signed letter, an email exchange, or another record that clearly establishes understanding and agreement. The writing should be comprehensive enough to show, if challenged later, that the client knew what they were agreeing to and understood the potential downsides.
What to Include
- A description of the conflict and how it could affect both clients' interests.
- An outline of the foreseeable risks, including the possibility that confidential information could be used against one client or that divergent interests might arise later.
- A statement of the alternatives, such as seeking separate counsel.
- Confirmation that the client had the opportunity to ask questions and was encouraged to seek independent legal advice.
- The client's clear statement of consent, preferably in their own words or with a signature.
Maintaining a dated record of this consent is critical. It shows not only that you obtained the client's agreement, but also that the consent was current and informed at the time.
See how ConflictCheck handles this for legal services
Advance waivers and why client sophistication matters
Advance waivers are agreements in which a client consents to future conflicts that may arise, usually described in general terms. These are common in business settings, where legal needs evolve and clients expect their lawyers to represent others in the same industry. But advance waivers are scrutinized closely, especially in solo and small firm practice.
The key question is whether the client's consent was truly informed when the conflict had not yet materialized. The more general and open-ended the waiver, the more likely it is to be questioned if challenged. Specificity is better: naming possible adverse parties or describing the types of matters covered gives the waiver more weight if tested.
Assessing Client Sophistication
Courts and ethics boards consider client sophistication when evaluating advance waivers. A large corporate client with in-house counsel is presumed to understand the risks and implications of waiving future conflicts. A small business owner or individual client may not. If the client is unsophisticated, you must take extra care to ensure they understand what the waiver covers and what it does not.
Some states require that the attorney explain not only the possibility of conflict, but also the potential consequences in plain language. The client must have a realistic picture: they may lose their lawyer if a direct conflict arises, or they may have to tolerate the lawyer representing an adverse party in a future, unrelated matter.
Advance waivers are rarely ironclad. If an unforeseen, nonconsentable conflict arises later, the original waiver will not allow the representation to continue. The duty to reassess the conflict at each stage remains, regardless of any prior agreement.
Three fact patterns and where each one lands
Fact Pattern 1: Former Divorce Clients Now in Business Dispute
You represented Spouse A and Spouse B in an uncontested divorce several years ago. Both come to you today, seeking your help in mediating a business dispute between them. The prior matter was amicable, and both clients are eager for your involvement. However, the current dispute is adversarial. Even with both clients' written consent, Rule 1.7(b) bars you from representing both in the same proceeding. The risk of divided loyalty is too great, and confidential information from the divorce could become relevant. This is a classic nonconsentable conflict.
Fact Pattern 2: Two Startups Competing for the Same Patent
Your small firm represents Startup 1 on employment matters. Startup 2, a new client, asks you to prosecute a patent application in a similar technology space. The clients are not directly adverse today, but both are competing for the same patent rights. With full disclosure, you reasonably believe you can represent both without impairing your advocacy. You describe the risks, encourage independent counsel, and both clients provide informed, written consent. This is likely a consentable conflict, as long as you continue to monitor for new adversity.
Fact Pattern 3: Advance Waiver for Industry Representation
You represent a commercial landlord who signs an engagement letter containing an advance waiver. The waiver states that you may represent other landlords or tenants in unrelated matters, as long as they are not directly adverse in the same transaction or litigation. The client is a sophisticated business owner and has access to regular legal advice. Later, a new client, also a landlord, seeks your help in negotiating a lease with a different tenant. The advance waiver applies, and the conflict is consentable because the clients are not opposing each other in the same matter, and both have provided informed, written consent.
These examples highlight the gray areas between consentable and nonconsentable conflicts. An honest assessment of the facts, the parties' positions, and the potential for adversity is essential. Judgment, not paperwork alone, decides where the line is drawn.
Even with robust screening and careful waivers, conflicts can arise unexpectedly. The best protection is a structured intake process, with automatic party screening and a clear, dated record of every conflict check and client consent. For solo lawyers and small firms, tools that combine intake, conflict searching, and recordkeeping can make this process more manageable and defensible.
