Can a client agree in advance to waive future conflicts of interest, and when is such an advance waiver valid under the D.C. rules?
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This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 309 (adopted September 2001) addressed whether a client could waive conflicts of interest in advance, that is, before the conflict arose and generally before its specifics (the adverse client, the matter) were known. The Committee concluded the D.C. Rules did not prohibit advance waivers, but subjected them to the same informed-consent requirement that governs all conflict waivers under Rules 1.7 and 1.9.
The opinion explained which conflicts could be waived. A Rule 1.7(a) conflict (the lawyer advancing adverse positions for two clients in the same matter) was nonwaivable. The waivable Rule 1.7(b) conflicts and Rule 1.9 former-client conflicts could be consented to only after disclosure sufficient for the client to make a fully informed decision, a standard the opinion described as subjective: a less sophisticated client needed more explanation than a more sophisticated one.
Drawing on ABA Formal Opinion 93-372, the Restatement of the Law Governing Lawyers, the ABA Ethics 2000 Commission's proposals, and case law, the opinion concluded an advance waiver was valid where either (1) the waiver was specific about the types of adverse representations and adverse clients, or (2) the waiving client had independent counsel (in-house or other) available to review it; a client with independent counsel could generally give even a general advance waiver. The opinion added important limits: advance waivers should exclude the same matter and any substantially related matter; the lawyer had to disclose any specific impending adversity already known; the lawyer could not seek a waiver if a duty of confidentiality to another client prevented adequate disclosure; and a conflict waiver did not waive confidentiality. It recommended (without requiring) that advance waivers be in writing and included a sample waiver in an appendix.
Currency note
This opinion was issued in 2001, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Were advance waivers of conflicts allowed at all?
A: The opinion concluded yes. The D.C. Rules did not prohibit advance waivers, but they had to meet the informed-consent requirements that apply to all conflict waivers under Rules 1.7 and 1.9.
Q: When was a general (non-specific) advance waiver valid?
A: The opinion concluded a general advance waiver was presumptively valid where the waiving client had independent counsel (in-house or outside) available to review it; without that, the waiver generally had to identify the types of adverse representations or adverse clients.
Q: Could an advance waiver cover a matter related to the lawyer's work for the client?
A: The opinion concluded no. Advance waivers should exclude the same matter and any substantially related matter, because of the heightened risk of misuse of client confidences.
Q: Did waiving a conflict also waive confidentiality?
A: The opinion concluded no. A waiver of conflicts did not waive confidentiality; confidentiality waivers required separate, particular scrutiny and could be invalid even for sophisticated clients with independent counsel.
Background and rules framework
The opinion interpreted D.C. Rule 1.7 (current-client conflicts, with nonwaivable same-matter adversity under 1.7(a) and waivable conflicts under 1.7(b)-(c)) and Rule 1.9 (former-client conflicts and their waiver), together with Rule 1.10 (imputation of a conflict to the lawyer's firm), Rule 1.6 (confidentiality, and the separate question of confidentiality waivers), and Rule 2.2 (intermediary). It relied heavily on ABA Formal Opinion 93-372, the Restatement of the Law Governing Lawyers, and the ABA Ethics 2000 Commission's proposed comments.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.7 / Model Rule 1.7 (current-client conflicts; waiver under 1.7(c))
- D.C. RPC 1.9 / Model Rule 1.9 (former-client conflicts; waiver)
- D.C. RPC 1.10, 1.6, 2.2 / Model Rules 1.10, 1.6, 2.2 (imputation; confidentiality; intermediary)
Cases:
- United Sewerage Agency v. Jelco Inc., 646 F.2d 1339 (9th Cir. 1981) (advance waiver upheld for an informed client)
- Worldspan, L.P. v. Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356 (N.D. Ga. 1998) (general advance consent insufficient for adverse litigation)
- In re James, 452 A.2d 163 (D.C. 1982) (detailed explanation of risks required for consent)
Other opinions cited:
- D.C. Ethics Opinions 265 (1996), 279 (1998), 289 (1999)
- ABA Formal Opinions 93-372 (1993) and 99-415 (1999); NYCLA Op. 724 (1998); LACBA Formal Op. 471 (1994)
See also
- ABA Formal Op. 05-436: Advance Waiver of Conflicts
- LACBA Ethics Op. 471: Advance Consent to Future Conflicts
- DC Ethics Op. 317: Repudiating a Conflict Waiver
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-309
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