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What is a Conflict Waiver?

Toni Henthorn
Toni Henthorn

When an attorney represents two or more of the parties in a legal matter, the dual representation may create a conflict of interest for the attorney. Although he may genuinely believe that he can fairly represent both clients, the representation at best is limited, since the attorney cannot ethically attempt to negotiate or improve the deal for either side against the interests of the other side. If the attorney chooses to undertake dual representation, he must obtain a conflict waiver from each of the parties. The conflict waiver is a written document signed by each party that specifically discloses the risks, benefits, and alternatives of the dual representation. A properly executed conflict waiver allows the attorney to steer clear of claims by a party of unethical conduct or malpractice related to the dual representation.

By obtaining a conflict waiver, the attorney has a way to keep profitable cases and valuable clients in situations where he would otherwise have to withdraw from a case. There are three main components to the conflict waiver process. First, before the attorney agrees to represent the clients, he must fully disclose the conflict and inform the potential clients of the disadvantages, advantages, and alternatives to the dual representation. After a full disclosure and discussion of the ramifications of dual representation, the attorney must have each potential client sign a conflict waiver document that outlines the items that the attorney covered and clearly spells out each party’s desire to retain the attorney in spite of the conflict. Finally, the attorney must believe and note that he has a valid conviction that he can fairly and competently manage the dual representation.

Businessman with a briefcase
Businessman with a briefcase

Dual representation has the obvious advantages of saving the clients time and money. For example, if two people are getting a divorce and they have already agreed on custody, alimony, and marital property division, then dual representation by one lawyer can save the couple a considerable amount of money and speed up the process. On the other hand, if the points of contention are not resolved or if the parties begin to argue, then the attorney cannot help them resolve the dispute. He cannot advocate strongly for one position or the other. Furthermore, neither party enjoys complete attorney-client confidentiality, because any disclosures made by one party that materially affects the position of the other party would have to be disclosed by the attorney.

The conflict waiver document should advise that the parties consult independent counsel before agreeing to the dual representation. Although the involved parties will rarely do so, this protects the attorney from ethics grievances or malpractice claims. A conflict waiver does not absolve the attorney of his duty to avoid irreconcilable conflict situations. If there is no practical way for the attorney to provide thorough and competent representation to each client, then the attorney is constrained ethically to remove himself from the case.

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