What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent

59 Pages Posted: 12 Sep 2012 Last revised: 25 Nov 2012

Date Written: September 11, 2012


Attorneys are frequently asked to represent more than one client in the same or related matters. The request can arise in nearly every practice setting, from criminal defense, to civil litigation, to complex transactions. Regardless of the setting, attorneys face the same challenge in deciding whether the conflict of interest posed by the joint representation can be waived by the clients. Under the Model Rules of Professional Conduct, the conflict of interest can be waived if (1) the clients provide knowing, informed consent to the joint representation, and (2) the attorney’s representation of the multiple clients will be competent and diligent (these latter elements referred to collectively as “competent” or “competence”). In assessing whether the joint representation will be competent, however, the attorney encounters the enigma that has bedeviled practitioners, courts and commentators since the adoption of the Model Rules. A joint representation hampered by a conflict of interest materially limits the services that the attorney can perform for one client because of her competing duties to the other client. Thus, the challenge: how can we know which joint representations are competent (and therefore “consentable”) when nearly all suffer from material limits on the services that counsel can undertake for the clients?

Courts cannot fashion a principled standard to assess conflict waivers if they cannot reconcile the consent and competence elements of Model Rule 1.7(b). Without the guidance of a clear standard, attorneys risk discipline and malpractice claims for proceeding under a conflict waiver that a tribunal may later deem invalid. Clients, in turn, may be deprived of their choice of counsel by courts that strike down waiver consents under a standard that is more visceral than reasoned. This article searches for principles to explain and unify our seemingly contradictory commitments to client choice and client protection. Drawing on the distinction between ends and means that grounds a limited form of paternalism and the emphasis of the Model Rules on client control over the objectives of the representation, this article proposes a new test by which courts and practitioners can honor both the consent and competence elements of Model Rule 1.7(b). An informed conflict waiver must be rejected as incompetent if limitations on the means or procedures by which the attorney pursues the matter caused by the conflict of interest are likely to defeat the client’s objectives for the representation.

Under this approach, we defer to the client’s objectives, long understood as the sole province of the client; we intervene when the client makes decisions about means that are likely to undermine those objectives. The test of competency is not whether the representation has a material deficiency — the very reason why client consent was necessary in the first place. Moreover, the question is not whether the client would have been better off without the consent, a decision that belongs to the client. By identifying what the client hopes to accomplish with the representation, the proposed test provides a baseline against which to measure the significance of the limitations caused by the joint representation. Not just any limits on means — even material ones — will invalidate a client’s consent. When a client consents to limitations that are likely to undermine her own objectives for the representation, the representation is incompetent — by dint of the client’s own more fundamental commitment. The proposed test accommodates both elements of Model Rule 1.7(b): competency and consent in tandem determine whether a client’s consent to a joint representation should be upheld or disregarded.

In application, the proposed test calls for a rethinking of: the Supreme Court’s approach to conflict waiver in the criminal-defense setting; the analysis of courts that have considered conflict waivers in civil litigation and transaction matters; and the approach of attorneys who are charged with determining in the first instance whether to accede to client requests for a joint representation. Given the stakes for clients and counsel, it is time we understood why and when a conflict can be waived.

Keywords: Conflicts of Interest, Waiver, Consent, Competence, Diligence, Paternalism

Suggested Citation

Michels, Kevin H., What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent (September 11, 2012). Rutgers Law Review, Forthcoming; Gonzaga University School of Law Research Paper No. 2012-17. Available at SSRN: https://ssrn.com/abstract=2144902

Kevin H. Michels (Contact Author)

The College of New Jersey ( email )

2000 Pennington Road
Ewing, NJ 08628
United States

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