By performing fast and broad computer searches, attorneys and law firms are able to identify potential conflicts of interest. But, like the dog that catches the bus, many attorneys encountering a potential conflict invariably face the important question of “What now?”

Identifying potential conflicts of interest is only half the battle. The other half requires attorneys to seek and obtain the client’s written consent to the representation after obtaining informed consent. After all, a potential conflict of interest that has not been resolved in accordance with the applicable ethical rules is still a conflict.

Informed Consent for Purposes of Resolving Potential Conflicts

Informed consent is required to enable a client to make an educated decision regarding whether to agree or object to a representation. For a former client, it involves accepting the risk that the attorney could use confidential information against the former client on behalf of a new client. For current clients who share an attorney, it involves waiving the right to insist that the attorney protect only their interests, as opposed to protecting their collective interests with the other clients.

According to the Colorado Rules of Professional Conduct (Rules), to obtain informed consent, an attorney must provide a full disclosure that demonstrates he or she has made reasonable efforts to ensure that the client or other person has obtained information reasonably adequate to make an informed decision.¹ Comment 6 to Rule 1 explains, in relevant part:

Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. . . . [A] lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid.

For the disclosure to be effective, it must enable a former or existing client to fully appreciate the risks of granting consent. It is not sufficient for an attorney to simply advise a client that there is a potential conflict of interest and to ask for consent without providing an explanation and additional information.

A Simple Waiver Isn’t Enough

Similarly, it is not sufficient merely to confirm a client’s waiver of the conflict and consent to the representation. An effective disclosure requires more. The Rules require that an attorney propose a course of conduct to [the client or other person] with adequate information and explanation about the material risks of [giving consent] and reasonably available alternatives to the proposed course of conduct.²

In general terms, this means that an attorney should disclose whatever information a reasonable person would expect and need before waiving an important right.

There are topics that every attorney should include when seeking a client’s consent or waiver. However, there is no template that attorneys can use as a form for full disclosure when seeking a client’s consent to a representation, because the type and content of a disclosure required for effective consent varies depending on the facts and circumstances of the specific representation. For example, the scope and content of full disclosure will often depend on the sophistication of the client, the nature of the representation, prior representations, and the length of the relationship.³

Written Consent

Does the client’s consent have to be in writing? Under the Rules, the answer is yes. Rules 1.7(b)(4) and 1.9(a) require that informed consent be “confirmed in writing.” Comment 20 of Rule 1.7 further requires that the writing be obtained or transmitted within a “reasonable time” after receipt of oral consent. Additionally, Comment 20 emphasizes the importance of written consent:

[T]he writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Invariably, once problems arise, clients have different recollections about the extent of the disclosure, their understanding of the risks, and whether they consented to the representation. That is why the safest way to proceed is to require that all clients consent in writing to a multiple or successive representation.

The easiest course is to include a signature line on the full disclosure letter and have the client return an executed copy. This simple measure serves to protect both the client (by making sure the client receives full disclosure in writing) and the attorney.

Client Consultation: Next Steps

Now that you have a client in your office, what steps should you take? First, identify the proposed representation and then state what consent the attorney seeks. General waivers involve a different kind of disclosure than a limited waiver for a specific representation. Hence, tailoring the full disclosure necessarily involves clarifying exactly which type of waiver the attorney seeks.

In the multiple representation context, this means advising the client that the attorney is requesting permission to jointly represent the client along with others. In the successive representations context, this means advising a former client that the attorney is requesting permission to represent a new client in a matter involving the former client.⁴

Second, identify the risks. There should be no mincing of words when disclosing the potential risks to a client. Subtle implication and suggestion do little when an attorney is attempting later to prove that a client consented to a representation after full disclosure. To be effective, the disclosure should clearly and plainly articulate the risks so that, if necessary, a court can determine that the client understood and accepted the risks by providing consent to the representation.

In the multiple representation context, this means identifying the kinds of things that an attorney cannot and will not do because the representation involves more than one client. For example, the attorney will not explore or pursue claims by one client against another client, such as opposing parties in the same transaction, a testator and beneficiary of a will, or spouses in a dissolution of marriage proceeding. Similarly, a lawyer who prosecuted a case could not subsequently represent the accused in a civil action against the government involving the same facts.⁵ In addition, information communicated by one client may be disclosed to the other clients. Other limitations on the attorney’s ability to act may also need to be disclosed, depending on the context.

The important point is to ensure that the consenting clients understand the limitations that arise from a joint representation, as opposed to the representation of a single client. In the successive representation context, this means explaining the risk that the attorney may have learned confidential information that may be used on behalf of a new client. The standard is not whether an attorney actually did learn confidential information in the prior representation that can be used against a former client. Instead, to trigger an attorney’s obligation to obtain a former client’s consent, all that is required is that the new representation be “substantially related” to the former representation.⁶ The existence of confidential information is presumed.

Third, advise the clients of their right to consult with independent counsel in deciding whether to agree to the multiple or successive representation. The safest course is to encourage independent counsel on all issues arising out of the potential conflict of interest.

Importantly, an attorney seeking a client’s consent should not advise a client on whether to give consent. Instead, the attorney’s role should be limited to fully disclosing the risks without actually advising the client about whether to give consent.

Fourth, confirm what will happen if an actual conflict develops that precludes the continued representation. Clients may agree, for example, that the attorney may continue to represent one of the clients if an actual conflict develops. Alternatively, the clients may insist that, under such circumstances, an attorney withdraw from the entire representation. In either case, it is important that the clients agree before the representation begins.

Both the multiple and successive representation rules require a consultation with the attorney for the client to consent. In most cases, the consultation will be in person. Unfortunately, although it is important to answer any questions a client may have, the consultation actually does little to protect an attorney from a later allegation challenging the client’s consent to the representation.

In addition to the consultation, there must be a written component. The most important document for effective consent is a writing, typically a letter. The letter should be jointly addressed to all of the clients (for a multiple representation), or to the former client (for successive representations), and should include a discussion of all the material risks of the representation.

Conclusion

Effective conflict waivers require a writing confirming the affected clients’ informed consent. There is no checklist or formula that an attorney can use in discussing conflict waivers with a client, or in drafting a written waiver for the client’s execution. These must be tailored to the unique circumstances of each situation. The four steps above, however, provide a helpful starting point for the attorney.

Notes

1.   See, e.g., Colo. RPC 1, cmt. [6].

2.   Colo. RPC 1.0(e).

3.   See Colo. RPC 1.7, cmt. [22] for additional information on how the effectiveness of informed consent will be evaluated.

4.   See Colo. RPC 1.9, cmt. [1]. A client transitions from a current client to a former client when the attorney–client relationship is terminated, such as when the attorney or the client provides the other with a writing confirming that the relationship has concluded.

5.   See Colo. RPC 1.9, cmt. [1].

6.   See Colo. RPC 1.9(a).