Freivogel on Conflicts
 
 
 
 
Waivers/Consents

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Table of Contents for this Page
          
  • Non-Waivable Conflicts?
  • Need for Writing?
  • Components of Effective Waiver?
  • Advance Waivers?
  • Implied Waivers?
  • Passage of Time as Waiver?
  • Revocation of Waiver?
  • Waiver Forms (separate page: click here)?

        "Consent" vs. "waiver."  The core rule on conflicts of interest, Model Rule 1.7. uses "consent."  So does the Restatement, when discussing conflicts.  Many cases and writers use the terms interchangeably.  "Waiver" seems slightly broader.  For example, when one considers passage of time as precluding a conflict objection, one thinks of "waiver," rather than "consent."  We will use "waiver" throughout this article.

Non-Waivable Conflicts

        The focus of this section will be to identify conflicts that simply may not be waived.  The new version of Model Rule 1.7(b)(3), adopted by the ABA House of Delegates in February 2002, specifically declares that being on both sides of litigation is not waivable.  Neither the new Rule 1.7 nor its Comment does much to clarify the buyer-seller, lender-borrower situation. 

        Restatement. The black letter of § 122(2) makes the same clarification as to litigation as new Model Rule 1.7(b)(3).  As to non-litigation, the Restatement, likewise, does little to clarify things.

        Cases.  A handful of cases discuss the litigation prohibition.  Those of which we are aware are: Nunez v. Lovell, 2008 U.S. Dist. LEXIS 77902 (D.V.I. Oct. 3, 2008) (decent survey of authorities); Sapienza v. New York News, 481 F. Supp. 676 (S.D.N.Y. 1979) (dicta); Klemm v. Superior Court, 142 Cal. Rptr. 509 (Cal. App. 1977) (uncontested divorce);  Florida Bar v. Feige, 596 So.2d 433 (Fla. 1992) (attorney could not defend client and himself in lawsuit, despite client's consent); Zarco Supply Co. v. Bonnell, 658 So.2d 151 (Fla. App. 1995) (law firm's representation of wife and children against husband and husband's insurer in personal injury lawsuit was improper where law firm also represented husband in medical malpractice action, despite husband's consent; client consent is insufficient where "the fair administration of justice" is called into question); Kelly v. Greason, 244 N.E.2d 456 (N.Y. 1968); Walden v. Hoke, 429 S.E.2d 504 (W. Va. 1993); and Jedwabny v. Philadelphia Transportation Co., 135 A.2d 252 (Pa. 1957), cert. denied, 355 U.S. 966 (1958).  As to non-litigation, go to "Commercial Negotiations.".

        Gallagher v. Atlantic City Bd. of Ed., 2010 U.S. Dist. LEXIS 13509 (D.N.J. Feb. 17, 2010).  In this opinion the court enforced New Jersey Rule 1.7(b)(1), which provides that a public body may not waive a conflict, according to its terms.  The Third Circuit affirmed, Gallagher v. Atlantic City Bd. of Ed., 2011 U.S. App. LEXIS 6646 (3d Cir. March 31, 2011).  Same result in disciplinary case,  In re Stagliano, 2013 N.J. LEXIS 194 (N.J. March 13, 2013).  The facts are in the decision of the N.J. Disciplinary Review Board, Docket No. DRB 12-226, decided December 20, 2012 (easily Googled).

        Bank of Nova Scotia v. Francis, 2012 U.S. Dist. LEXIS 123764 (D.V.I. Aug. 29, 2012).  Plaintiff brought this mortgage foreclosure action.  The defendants included a junior lien-holder ("JLH").  Partner A of Law Firm represented Plaintiff.  Partner B of Law Firm represented JLH.  The court noted the conflict and requested briefs on it from the parties.  The District Court of the Virgin Islands, by local rule, adopted the ABA Model Rules.  The court found that Rule 1.7 was violated, but further found that no evident prejudice resulted given the clarity of the parties' positions, their having signed waivers, and their sophistication.  But, the court did disqualify Partner B, leaving Partner A in place.  The court also found that the conflict was not the sort of "fraud on the court" that would justify vacating a judgment under Rule 60 of the FRCP. 

        N.Y. City Op. 2001-2 (2001) deals primarily with transactions, but touches on litigation as follows:

In litigation, the answer is clear-cut.  As Professor Simon states, "Obviously, a lawyer cannot represent both sides in the same litigation.  That is one of the few per se rules in the field of conflicts."  Simon's New York Code of Prof. Resp. Ann., DR 5-105, at 337 (West 2000); accord Wolfram, § 3.7.2 ("Almost without exception, a lawyer may not represent adverse parties in the same litigation.").

        Unduly Severe Opinion.  Va. Op. 1408 (1991).  The issue was whether a law firm could, with a waiver, oppose a bank’s real estate loan division in litigation, and, at the same time represent the bank’s commercial finance division in a bankruptcy matter.  The committee said the conflict could not be waived and the representation would be improper.

        Bond Lawyers in Iowa.  Iowa Op. 06-03 (November 6, 2006).  This opinion softens Iowa’s position on conflicts for municipal bond lawyers.  It provides that a law firm may represent an issuer when it is already representing the underwriter in other, unrelated, transactions, provided waivers are obtained, and the parties signing the waivers are sophisticated.  Earlier Iowa Op. 95-20 (February 22, 1996), would have prevented such a waiver and would have barred a law firm from representing an issuer where the firm represents the underwriter currently, or had represented the underwriter in the past.

        Vt. Op. 2004-3 (undated) holds that a lawyer cannot represent the seller of real estate and prepare the title policy for the buyer, even with full disclosure and consent.

        Van Kirk v. Miller, 869 N.E.2d 534 (Ind. App. 2007) .  The court held that with a waiver a lawyer could represent the seller and buyer of a tavern.

        Litigation Prohibition in Florida.  Anheuser-Busch Cos., Inc. v. Staples, 2013 Fla. App. LEXIS 16026 (Fla. App. Oct. 9, 2013).  Staples worked for Company and suffered a work-related injury.  He received workers' compensation.  Staples was later injured on Homeowners' premises.  Law Firm filed a negligence action for Staples against Homeowners.  Law Firm also filed with the court a workers' compensation lien on behalf of Company.  Company and Homeowners signed a waiver of the conflict.  Nevertheless, the trial court granted a motion to disqualify Law Firm.  In this 2-1 decision the appellate court affirmed.  The were concurring and dissenting opinions and a fairly thorough discussion of what is waivable in Florida.

        Robertson v. Wittenmyer, 736 N.E.2d 804 (Ind. App. 2000) Wittenmyer was driving, and Robertson was a passenger.  They rear-ended a truck, and a station wagon rear-ended them.  McGlone represented Wittenmyer and Robertson against the station wagon.  They settled.  Robertson's share was less than his medical bills.  McGlone then sued Wittenmyer on behalf of Robertson.  During all this time McGlone was representing Wittenmyer in a workmen's compensation matter.  The court held that McGlone should be disqualified and that the conflict was non-waivable.  See, too, Ill. Op. 96-06 (1996), dealing with a lawyer who attempted to represent and injured minor as well as his parents.

        Additional Note on Litigation.  In footnote 12 to Rotunda &  Dzienkowski § 1.7-2(c), the authors make the common sense observation that a lawyer may be able to handle a simple, uncontested divorce for both parties.  Many lawyers would agree with him.  That was the ruling in Klemm, above.  But, see Hazard, Hodes, & Jarvis § 11.4, Illus. 11-1 and N.C. Op. 2002-6 (2003).  In In re Egedi, 105 Cal. Rptr. 2d 518 (Cal. App. 2001), the court held that a marital support agreement drafted by one lawyer for both parties was enforceable.  The lawyer had obtained a written conflicts waiver and agreed to act only as a scrivener.  But, see Vinson v. Vinson, 588 S.E.2d 392 (Va. App. 2003).  The wife went to a lawyer about a divorce.  The lawyer drafted a retainer agreement stating that both the wife and her husband were clients of the lawyer.  In later litigation between the husband and the lawyer the trial court said that the retainer “on its face” constituted a “gross conflict of interest.”  The appellate court did not use that language but did affirm the trial court’s entry of relief against the lawyer.  One could infer that the court would have found the conflict non-waivable.

        Attacks by Clients Creating Non-Waivable Conflicts (or not).  Ill. Op. 89-11 (1989) says a lawyer may, with consent, continue to represent a client who has filed a disciplinary complaint against the lawyer for conduct earlier in that proceeding.  In Moore v. United States, 2008 U.S. Dist. LEXIS 34741 (E.D. Cal. April 28, 2008), a client of Lawyer hired another lawyer to bring a malpractice claim against Lawyer.  For that reason Lawyer moved to withdraw from this case.  In this opinion the court found that Lawyer had an "actual conflict" and permitted Lawyer to withdraw.

        Allen v. Gaus, 2014 Mich. App. LEXIS 376 (Mich. App. Feb. 27, 2014). Legal malpractice case. Family had a claim against Hospital. Hospital was prepared to settle and suggested Family hire Lawyer at Hospital’s expense. Because Lawyer represented Hospital from time-to-time, Lawyer had Family member sign a conflict waiver. After a settlement was approved, Family sued Lawyer. Both the trial court and appellate court, dismissing the case, found that Family could prove no damages. Nevertheless, the appellate court was highly critical of Hospital for injecting its own lawyer to represent Family.

        Treatise.  Hazard & Hodes § 11.6.

        Law Review.  Fred C. Zacharias, Waiving Conflicts of Interest, 108 Yale L.J. 407, 416-429 (1998); Peter Jarvis & Bradley Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 Willamette L. Rev. 145 (1997)

Need for Writing

        Before getting into what the rules require, it should be noted that written waivers are always a good idea.  A case in which the court rejected a claim of waiver, the court noted that there was nothing in writing, In Re Corn Derivatives Antitrust Lit., 748 F.2d 157 (3d Cir. 1984).

        New Model Rule 1.7, adopted by the ABA House of Delegates in February 2002, which governs most conflict situations, requires that waivers be in writing. 

        Model Rule 1.8(a), on doing business with clients, requires that both the disclosures to the client and the waiver from the client be in writing.

        Restatement.  See § 122, which is the rule that deals with waivers.  It does not require writings where the Model Rules do not.  Doing business with clients is dealt with at § 126.  Oddly, the black letter does not mention a writing.  However Comment g refers to the fact that state codes require it.  Thus, the Restatement seems to be saying in a back-handed way that the Model Rule 1.8(a) requirements for writings do apply, after all.

        The States.  The states vary.  You must check a relevant state's version of Model Rule 1.7 to be sure whether a writing is required.  California's core conflicts rule, Rule 3-310, requires writings under almost all conflict circumstances, as does Rule 3-300, California's version of Model Rule 1.8(a). In re Robin, 2002 Cal. App. Unpub. LEXIS 3042 (Cal. App. March 15, 2002) (Cal. App. 2002) (recital in court and "on the record" did not satisfy California's writing requirement). Washington's version of Rule 1.7 requires that waivers be in writing.  Washington's version of Rule 1.8 has the Model Rule requirement that disclosures to the client be in writing, but drops the Model Rule requirement that the client's waiver also be in writing.  Wisconsin's version of Rule 1.7 requires waivers to be in writing.   

        Former Government Lawyers.  Model Rule 1.11 applies to lawyers leaving governments for private employment.  Subsection (a)(2) requires written notice to the government where a lawyer is going to be screened from a matter.  The Ethics 2000 version of Rule 1.11 contains the same requirement.

        N.Y. Op. 829 (2009) (waiver valid before new rules still valid, even advance waiver).
          
Components of Effective Waiver

        Comment [10] to New Model Rule 1.7, adopted by the ABA House of Delegates in February 2002, contains one of the better descriptions of what constitutes an effective waiver:

[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the 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

        Restatement.  The black letter of § 122 (the waiver section) contains the following:

Informed consent requires that the client or former client have reasonably adequate information about the material risks of such representation to that client or former client.

        Cmt. c(i) to § 122 is a detailed treatment of what constitutes adequate information, and cmt. c(ii) discusses the capacity of the consenting person to give the consent.  The Reporter's Note to those comments reviews cases and other authorities on what constitutes an effective waiver.  The cases are so numerous and so fact-specific, we will not undertake listing or discussing them here.  When a notable case on consent does come down, we will post it both at the What's New page and in this article.

        In Welch v. Paicos, 26 F. Supp. 2d 244 (D. Mass. 1998), there was an issue about how much "consultation" had occurred.  The court refused to disqualify counsel because the former client had been represented by other counsel at the time of the waiver.  A similar result occurred in Lease v. Rubacky, 987 F. Supp. 406 (E.D. Pa. 1997).

        In Image Technical Services v. Eastman Kodak Co., 820 F. Supp. 1212 (N.D. Cal. 1993), a cursory mention of the conflict was deemed not adequate.  A disciplinary case in which the lawyer's disclosure was considerably greater, but still found wanting, is In re Brandt, 10 P.3d 906 (Ore. 2000).

        Good Discussion of Effective Waiver in Derivative Action.  In re Cerberus Capital Management, L.P., 164 S.W.3d 379 (Tex. 2005).

        Lawyer Needs Client Permission to Waive Conflict.  In re Dawn Gayken, 2005 Tex. App. LEXIS 4688 (Tex. App. June 16, 2005).

        Flores v. Skaro, 2005 Tex. App. LEXIS 9162 (Tex. App. Nov. 3, 2005).  This began as a suit for the wrongful death of a mother.  That case was settled for $6.5 million.  Under the terms of the distribution agreement the bulk of the settlement went to the decedent’s minor daughter and the plaintiffs’ lawyer.  The father received a relatively small amount.  One lawyer represented all the parties aligned with the decedent’s estate, including the father.  When it came time to agree on a distribution, the lawyer warned the father in writing that the lawyer had a conflict and that the father ought to get independent counsel.  The father did not do so, did not then object to the distribution, and even initialed each page of the document describing the distribution.  Three years later the father sued the lawyer.  The trial court granted the lawyer summary judgment.  The appellate court affirmed, in part because the father had waived the lawyer’s conflict of interest.  The court based its holding upon the fact that the lawyer notified the father of the conflict in writing, the lawyer suggested the father get other counsel, the father initialed the distribution document, and the father at no time during the distribution discussions objected.  While the appellate court did not focus on it, the evidence was that after the mother’s death the father was romancing a 17-year-old girl.

        Iowa S. Ct. Att’y. Disc. Bd. v. Clauss, 711 N.W.2d 1 (Iowa 2006).  Lawyer represented a collection agency (“Creditor”), and Lawyer represented Debtor.  Lawyer seemed to feel that if he could help Debtor stay in business, by defending Debtor in an unrelated matter, he could help Creditor collect from Debtor.  He discussed this multiple representation with each of them and wrote them letters merely pointing out the fact that he represented both of them.  Neither letter spelled out ways in which this “conflict” could harm Creditor or Debtor.  The Iowa Supreme Court said these waivers were not good enough.

        Court Impliedly Approved Lame Waiver in Estate Planning Context.  Bishop v. Maurer, 823 N.Y.S.2d 366 (N.Y. App. 2006).

        In Close Corporation All Shareholders Must Agree to Conflicts Waiver. Williams v. Stanford, 2008 Fla. App. LEXIS 4242 (Fla. App. March 25, 2008).

        Van Kirk v. Miller, 869 N.E.2d 534 (Ind. App. 2007) .  In this case the lawyer sought to represent the seller and purchaser of a tavern.  He had both parties sign a written waiver and explained the waiver to them.  The court found the waiver to be effective.

        Where Business Owner Signed Waiver in Individual Capacity, Business on Notice of Conflict.  Smith v. Morris, Manning & Martin, LLP, 2008 Ga. App. LEXIS 860 (Ga. App. July 16, 2008).

        Treatise.  Hazard, Hodes, & Jarvis § 10.9; Wolfram, Modern Legal Ethics § 7.2.4 (1986); Rotunda & Dzienkowski § 1.7-1(b).

        In Dimenco v. Service Empoyees Int'l Union, 2011 U.S. Dist. LEXIS 4068 (N.D. Cal. Jan. 10, 2011), the court held that several members of a labor union could not waive a conflict on behalf of the union.

        In Filippi v. Elmont Union Free School Dist. Bd. of Educ., 2010 U.S. Dist. 66352 (E.D.N.Y. July 2, 2010), the court held that a school board’s waiver should have been in writing; although, the court expressed doubt whether the conflict was waivable.  An associate in the opposing law firm was a member of the defendant school board.

        Snyder v. Snyder, 2008 N.Y. App. Div. LEXIS 10176 (N.Y. App. Dec. 31, 2008).  Court held that lawyer had “apparent authority” to waive.

Advance Waivers

        The situation is as follows: A lawyer takes on a single piece of business for a very large company that will result in fees totaling $20,000. The lawyer has little reason to believe that the company will give the lawyer any other business. May the lawyer ask the company to waive an objection to future matters in which the lawyer is asked to represent some other client against the company on some completely unrelated matter – even before the original matter is completed?

        Almost all authorities agree that such an arrangement is not per se unethical, at least as to private entities (as to public entities see the paragraph entitled "Governments," below).  The problem is that, depending upon the facts and the tribunal, any number of things can result in such a waiver not being enforceable. The key issues will be (1) whether the future "unrelated" matter is adequately identified, (2) whether the party giving the waiver is adequately sophisticated, (3) whether the waiver is recent enough, and (4), in some cases, whether the waiving party had an opportunity to seek independent counsel’s advice on giving the waiver. So far, no two courts have treated these issues the same.

        Comment [22] to new Model Rule 1.7, adopted by the ABA House of Delegates in February 2002, provides as follows:

[22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

        A number of courts and ethics committees have addressed the efficacy of such waivers.  We will attempt to separate them into two basic categories: opinions favorable to advance waivers; and opinions not favorable.

        Courts FavorableMelville Capital, LLC v. Tennessee Commerce Bank, 2011 U.S. Dist. 149384 (M.D. Tenn. Dec. 29, 2011); In re Shared Memory Graphics LLC, 2011 U.S. App. LEXIS 19414 (Fed. Cir. Sept. 22, 2011) (confusing opinion involving a confusing joint defense agreement); Unified Sewerage Agency of Washington County v. Jelco Corp., 646 F.2d 1339 (9th Cir. 1981);  City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1976, aff'd mem., 573 F.2d 1310 (6th Cir. 1977);  United States v. Hatfield, 2009 U.S. Dist. LEXIS 106269 (E.D.N.Y. Nov. 13, 2009) (criminal case); Wolk v. Flight Options, Inc., 2005 U.S. Dist. LEXIS 19891 (E.D. Pa. Sept. 13, 2005) (not a disqualification matter; court implied approval of advance waivers); In Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Cal. Jan. 29, 2003); Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F. Supp. 2d 579 (D. Del. 2001); General Cigar Holdings, Inc. v. Altadis, S.A., 144 F. Supp. 2d 1334 (S.D. Fla. 2001) (reviewed by other lawyer; client sophisticated); In re Rite Aid Corp. Securities Litigation v. Grass, 139 F. Supp. 2d 649 (E.D. Pa. 2001); Fisons Corp. v. Atochem N.A., Inc., 1990 U.S. Dist. LEXIS 15284 (S.D. Cal. 1990); Kennecott Copper Corp. v. Curtiss-Wright Corp., (S.D.N.Y.) (MacMahon, J) (Memorandum and Order, April 10, 1978); Interstate Properties v. Pyramid Co., 547 F. Supp. 178 (S.D.N.Y. 1982); West Contra Unified Sch. Dist. v. RDS Architects, 2004 Cal. App. LEXIS 11726 (Cal. App. Dec. 27, 2004); Zador Corp. v. Kwan, 37 Cal. Rptr. 2d 754 (Cal. App. 1995); Elliott v. McFarland Unified School Dist., 165 Cal. App. 3d 562 (Cal. App. 1985); GEM Holdco, LLC v. Ridgeline Energy Servs., Inc., 2015 WL 4112529 (N.Y. App. Div. July 9, 2015) (cites St. Barnabas); Macy's Inc. v. J.C. Penny Corp., Inc., 3013 N.Y. App. Div. LEXIS 4798 (N.Y. App. Div. June 27, 2013); St. Barnabas Hospital v. New York City Health & Hospitals Corp., 775 N.Y.S.2d 9 (N.Y. App. 2004) (court enforced advance waiver in litigation even though it did not mention litigation); Grovick Props., LLC v. 83-10 Astoria Blvd., LLC, 2014 N.Y. App. Div. LEXIS 5562 (N.Y. App. Div. Aug. 6, 2014) (citing St. Barnabas, court approved waiver for future "adverse relationship -- naming parties); Lasavage v. Smith, 2011 WL 28536997 (Pa. Com. Pl. June 16, 2011) (comprehensive discussion of advance waivers, although a former-client situation); Alberta Union of Provincial Employees v. United Nurses of Alberta, 200 ABQB 33 (CanLII) ( Ct. App. Alberta Jan. 23, 2009); Statesman Master Builders Inc. v. Bennett Jones LLP, 2025 ABCA 142 (CanLII) (Ct. App. Alberta April 21, 2015).        

        Advance Waiver not Enforced. GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., No. 09-2790-cv (2d Cir. Aug. 18, 2010) (situation did not fit language of retention agreements); Lennar Mare, LLC v. Steadfast Ins. Co., 2015 WL 1540638 (E.D. Cal. April 7, 2015) (too broad under the circumstances); Brigham Young U. v. Pfizer, Inc., 2010 U.S. Dist. LEXIS 104164 (D. Utah Sept. 29, 2010) (court construed advance waiver against law firm); Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796 (N.D. Cal. 2004) (waiver not specific enough and not discussed with client); Goss Graphics Systems, Inc. v. Man Roland Druckmaschinen Aktiengesellschaft, 2000 U.S. Dist. LEXIS 18100 (N.D. Ia. 2000) (conflict regarding which document applied; court resolved in favor of disqualification); Worldspan L.P. v. The Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356 (N.D. Ga. 1998) (waiver failed to mention litigation and too remote in time; court seemed highly skeptical of such waivers); Florida Ins. Guaranty Ass'n. Inc. v. Carey Canada, Inc., 749 F. Supp. 255 (S.D. Fla. 1990); Marketti v. Fitzsimmons, 373 F. Supp. 637 (W.D. Wisc. 1974) (mere knowledge by client of second representation not a waiver); In re Boone, 83 F. 944 (N.D. Cal. 1897); All American Semiconductor, Inc. v. Hynix Semiconductor, Inc., C 07-1200 (N.D. Cal. Dec. 18, 2008); Sheppard, Mullin, Richter & Hampton, LLP v. J-M Mfg., Inc., 2016 WL 364742 (Cal. App. Jan. 29, 2016) (not enforced where law firm did not disclose existing relationship); Hasco, Inc. v. Roche, 700 N.E.2d 768 (Ill. App. 1998); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 843 N.Y.S.2d 749 (N.Y. S. Ct. 2007) (insufficient disclosure); MTM Comm’l Trust v. Statesman Riverside Quays Ltd., 2014 ABQB 16 (CanLII) (Ct. Q.B. Alb. Jan. 8, 2014) (unspecific advance waiver not enforced under the circumstances)

        Magistrate Judge Hostile to Advance Waiver, but Texas District Court Judge Disagrees.  Celgene Corp. v. KV Pharm. Co., 2008 U.S. Dist. LEXIS 58735 (D.N.J. July 29, 2008).  Law Firm is defending this patent infringement case.  The plaintiff is a current client of Law Firm on other matters.  The plaintiff moved to disqualify Law Firm, and in this opinion, a magistrate judge granted the motion.  Law Firm had obtained advance waivers from the plaintiff that said that Law Firm could be adverse to the plaintiff and specifically included “litigation” in the waiver.  The waivers were signed by in-house lawyers for the plaintiff.  The court based part of its decision on the fact that the waivers did not specify what sorts of matters were included and what other parties might be involved.  The court also held that the term “substantially related” was ambiguous.  Wrong, says judge in Galderma Labs., L.P. v. Actavis Mid Atl. LLC, 2013 U.S. Dist. LEXIS 24171 (N.D. Tex. Feb. 21, 2013).

        In McKesson Information Solutions, Inc. v. Duane Morris LLP, No. 2006CV121110 (Super. Ct. Fulton Co. Ga. Nov. 8, 2006), the trial judge found an advance waiver not enforceable even though the law firm did everything it could have to document it properly.  The judge ignored ABA Op. 05-436 (2005), and cited Worldspan L.P. v. The Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356 (N.D. Ga. 1998).  On March 8, 2007, the court reversed herself because the offending representations had ended.  She did not retract her earlier position that the advance waiver in question was ineffective.

        Centennial Ins. Co. v. Apple Builders & Renovators, Inc., 2009 N.Y. App. Div. LEXIS 1841 (N.Y. App. Mr. 17, 2009).  Following is the court's entire opinion:   

The motion court properly denied defendants' cross motion, since defendant Apple Builders & Renovators, Inc. had executed a written waiver in its retainer agreement with the same law firm specifically waiving any conflict of interest that might arise from the firm's representation of Centennial and Apple. Apple cannot compel the disqualification of plaintiff's counsel simply because the representation to which it consented has since devolved into litigation (see St. Barnabas Hosp. v New York City Health and Hospitals Corp., 7 AD3d 83, 92, 775 N.Y.S.2d 9 [2004]). Apple's claim that it did not understand the implications of the waiver is unsupported by the clear language of the retainer agreement and the record evidence.
 
        ABA Op. 05-436 (May 11, 2005).  In this opinion the Committee has withdrawn ABA Op. 93-372.  In conformance with new Comment [22] to Model Rule 1.7 (see above), the Committee said that an “open-ended” advance waiver may be effective where the person giving it is sophisticated or represented by other counsel on the waiver issue.

        D.C. Op. 309 (2001); N.Y. Op. 829 (2009) (waiver valid before new rules still valid, even advance waiver); N.Y. City Op. 2004-02 (2004), and  N.Y. County Op. 724 (1998) follow the approach of ABA Op. 93-372 (1993), which has been withdrawn in 2005 (see prior paragraph).  See, too, Cal. Op. 1989-115 (1989),.and L.A. Co. Op. 471 (1994).  A relatively friendly opinion on advance waivers is N.Y. City Op. 2006-1 (Feb. 17, 2006).

        D.C. Rule 1.7 cmts. 31 & 32, effective February 1, 2007, recognize advance waivers.

        Restatement. See § 122, cmt. d.  It says that normally to be effective the client must be sophisticated and have an opportunity to get the advice of another lawyer.

        Treatises.  Hazard, Hodes, & Jarvis § 10.9; Rotunda & Dzienkowski § 1.7-4(b).

        Law Reviews.  Arthur D. Burger, Advance Waivers: Be Specific or Don’t Count on Them, 31 Law. Man. Prof. Conduct 441 (July 29, 2015); Michael J. DiLernia, Advance Waivers of Conflicts of Interest in Large Law Firm Practice, 22 Geo. J. Legal Ethics 97 (Winter 2009); Alice E. Brown, Advance Waivers of Conflicts of Interest: Are the ABA Formal Ethics Opinions Advanced Enough Themselves?, 19 Geo. J. Legal Ethics 567 (2006); Eileen Libby, Looking Ahead: ABA Ethics Opinion Says Clients May Waive Objections to Future Conflicts of Interest, 91 A.B.A.J. 26 (Aug. 2005); Lerner, Honoring Choice by Consenting Adults: Prospective Conflict Waivers as a Mature Solution to Ethical Gamesmanship – A Response to Mr. Fox, 29 Hofstra L. Rev. 971 (Summer 2001); Richard W. Painter, Advance Waiver of Conflicts, 13 Geo. J. of Legal Ethics 289 (2000); Note, Prospective Waiver of the Right to Disqualify Counsel for Conflicts of Interest, 79 Mich. L. Rev. 1074 (1981); W. Bradley Wendel, Pushing the Boundaries of Informed Consent: Ethics in the Representation of Legally Sophisticated Clients, 47 U. Toledo L. Rev. 39 (2015); J. Charles Mokriski, Advance Waivers; Another View, Boston Bar Journal, (Winter 2011) (author takes the position that advance waivers are not anti-client; that they are often an attempt to fulfill what the author claims are reasonable expectations of a firm’s other clients when the matter undertaken pursuant to the waiver is wholly unrelated to its representation of the client who gave the waiver).

        Peter Jarvis, David Lewis, Allison Rhodes, & Calon Russell, Clearly Enforceable Future Conflicts Waivers, 30 ABA/BNA Lawyers' Man. Prof. Conduct 692 (Oct. 22, 2014).  This is an excellent, and very practical, "Insights" article on advance waivers.  It includes a carefully crafted provision for insertion in engagement agreements.  Based upon our review of decisions rejecting such provisions, the provision in this article seems nearly "bullet-proof."

        Governments.  We are aware of a few jurisdictions where a waiver from a state or local government simply would not be enforced.  New Jersey Rules of Professional Conduct 1.7(a)(2) & 1.7(b)(2); State of West Virginia v. MacQueen, 416 S.E.2d 55 (W. Va. 1992);  and City of Little Rock v. Cash, 644 S.W.2d 229 (Ark. 1982).  This may be true in other states, as well.

        "Sidebar," Nat. L. J., May 22, 2000.  According to this publication, a prominent Philadelphia law firm recently tried to rely on an advance waiver that was signed in 1990. Evidently, it did not work, and a state administrative tribunal removed the firm from the matter in question. The brief article does not say whether the age of the waiver was a factor.

        The New York and Presbyterian Hosp. v. New York State Catholic Health Plan, Inc., Index No. 04-603640 (N.Y. Sup. Ct. May 25, 2006).  The trial court disqualified a law firm, which attempted to rely on an advance waiver.  In her oral ruling the judge said that a law firm could not rely on an advance waiver to be adverse to a current client in litigation.  The court agreed with the other side's argument that the law firm should have obtained another waiver after it was asked to appear in this case.  We believe this decision is inconsistent with virtually all the cases approving advance waivers as well as the Restatement and ethics opinions cited above.

Implied Waivers

        Passage of Time.  Many cases deal with the concept of waiving a conflict by waiting too long to raise it.  They are the subject of a section of this article, "Passage of Time as Waiver," below. 

        Time not a Factor.  In the following cases the courts discussed implied waivers in contexts other than a claim that the aggrieved party waited too long to bring a motion to disqualify.  In some cases the court made a distinction between conflicting representations that were current as opposed to those that were successor.  In the current representation situations, those courts said there could be no implied waiver. 

        FDIC v. Frazier, 637 F. Supp. 77 (D. Kan. 1986) (court found implied waiver where conflicting representations were current); and Conoco, Inc. v. Hon. Pat M. Baskin, Judge, 803 S.W.2d 416 (Tex. App. 1991) (said trial court could have justified denial of motion to disqualify by finding the movant had impliedly waived the conflict, even where conflicting representations were current).

        In re Estate of Richard, 602 P.2d 122 (Kan. App. 1979), involved a claim for specific performance of an oral contract.  The plaintiff lost and claimed on appeal that one of the lawyers should have been disqualified.  The appellate court agreed and remanded for a new trial.  However, the court approved the concept of implied waiver as follows:

A client may also expressly or impliedly consent to an attorney's representing adverse interests, but there is no evidence in the record in this case that the client did so.

    (emphasis added)

        In McCann v. ABC Ins. Co., 640 So. 2d 865 (La. App. 1994), a party had moved to disqualify counsel on the other side on the eve of trial.  The appellate court noted the last-minute aspect of the motion, but the court also looked at factors other than the passage of time, such as the fact that confidences were not shared and no prejudice to the complaining party had been shown.  The court said:

Moreover the evidence strongly supports a finding that Methodist implicitly waived the condition of disqualification per Rule 1.10 (d).

        Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400 (Tenn. 1991), involved successive representations and was a malpractice case.  But it contains language friendly to the concept of implied waiver:

There is no evidence of demonstrated conflicts or potential conflicts not expressly or implicitly waived that would prohibit the simultaneous representation of the corporation and the parties involved in its organization.

* * * * *

Had there been a conflict of interests, Mehler's failure to raise the issue would have created a reasonable belief on the part of Stone & Hinds that its continued representation of the corporation was acceptable to Mehler.?

        While not a disqualification case, the court in Glidden Co. v. Jandernoa, 173 F.R.D. 459 (W.D. Mich. 1997) expressed hostility to the concept of an implied waiver of a conflict:

Where dual representation creates a conflict of interest, the burden is on the attorney involved to approach both clients with an affirmative disclosure and a request for express consent. Independent consultation with another lawyer by the opposing party is insufficient to satisfy the obligation of full disclosure.

        Likewise, in In re Am. Continental Corp./Lincoln Savings & Loan Securities Litig., 794 F. Supp. 1424 (D. Ariz. 1992), a securities class action against lawyers, among others, the court said:

A client's implied consent is insufficient to waive a potential conflict of interest.

        Recognized Implied Waiver.  Old Repub. Nat. Title Holding Co. v. First Metro. Title Co., 2010 Mich. App. LEXIS 538 (Mich. App. March 23, 2010).  In this case Co. A sued Co. B.  Co. B was represented by Law Firm.  While this case was pending a third party sued both Co. A and Co. B in a Wisconsin court.  Pursuant to an indemnity agreement, Co. A tendered the defense of the Wisconsin case to Co. B.  Accepting the tender, Law Firm, through local Wisconsin counsel, filed an answer on behalf of both Co. A and Co. B.  Believing Law Firm had a conflict, Co. A filed in this case a motion to disqualify Law Firm.  The trial judge denied the motion.  In this opinion the appellate court affirmed.  The court held that because Co. A knew exactly what Law Firm was doing each step of the way, Co. A impliedly waived the conflict.

        California.  Several cases from California are clear that implied waivers will not be recognized in cases of simultaneous representation, but might be recognized in cases of successor representations.  Blecher & Collins, P.C. v. Northwest Airlines, Inc., 858 F. Supp. 1442 (C.D. Cal. 1994); State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co., 86 Cal. Rptr. 2d 20 (Cal. App. 1999); In re Lee G., 1 Cal. Rptr. 2d 375 (Cal. App. 1991); Health Maintenance Network v. Blue Cross of So. California, 249 Cal. Rptr. 220 (Cal. App. 1988).  Recall that in California conflict waivers must be in writing.  See "Need for Writing," above.  The judge in Blecher, referring to the Lee and Health Maintenance decisions, said as follows:

Both of these cases held that an attorney's former client can impliedly consent to his former attorney's decision to represent his current adversary. Neither case holds or suggests that current clients can impliedly consent to conflicted representation. Rule 5-102(B) [predecessor to California Rule 3-310] clearly requires attorneys to obtain an informed written waiver of conflicts before embarking on joint representation. Because obtaining a written waiver requires little effort, informs and protects clients, and avoids costly evidentiary and credibility disputes, the rule is inflexible.

    (emphasis added)

        Treatise.  Rotunda & Dzienkowski § 1.7-1(d).

Passage of Time as Waiver

        Put simply, when a motion to disqualify is filed, courts look at how long the movant waited before filing it.  Opinions where the court considered whether the movant waited too long are too numerous to collect all of them here.  We will list many of them.  Anyone with an issue concerning waiver through passage of time should start with Central Milk Producers Coop. v. Sentry Food Stores, Inc., 573 F.2d 988 (8th Cir. 1978).  (In Central Milk, the court said that motions to disqualify must be made with "reasonable promptness," and denied a motion to disqualify because the movant waited too long.)  Central Milk is frequently cited, and Shepardizing it is a good way to find more recent cases in the relevant jurisdiction.

        In many cases, the court simply holds that the movant waited too long.  In other cases, the court will weigh the amount of time the movant waited with the seriousness of the alleged conflict.  For example, in State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d 380 (8th Cir. 1979), the delay was "more than two years" but the court refused to find a waiver because of the seriousness of the alleged conflict.  In all cases, the courts recognize that delay in bringing a motion to disqualify can operate as a waiver.  They vary as to how much delay is necessary and how to weigh the countervailing factors, such as the nature of the conflict.

        Below are two lists: one for cases in which the court found that the movant waived the conflict by waiting too long, and another for cases in which the court found no waiver.  We had to build these lists from the ground up, and have undoubtedly missed some, so, as stated in the "Ground Rules," this site is no substitute for doing your own research.

        Where the length of the movant's delay is clear, we will note it.  Some courts will use the term "waiver."  Other courts use "estoppel."  We are not aware of the significance of the difference in this context.

        Cases Denying Disqualification Because of Delay. Murray v. Metro. Life Ins. Co., 2009 U.S. App. LEXIS 21315 (7th Cir. Sept. 29, 2009) (waiting nine years “weighs against” disqualification); Stalnaker v. DLC, Ltd.,  376 F.3d 819 (8th Cir. 2004) (raised first time on appeal); In re Valley-Vulcan Mold Co., 2001 U.S. App. LEXIS 3212 (6th Cir. 2001) ("less than one week before trial" - length of delay unclear); Kafka v. Truck Ins. Exchange, 19 F.3d 383 (7th Cir. 1994) (after trial); Cox v. American Cast Iron Pipe Co., 847 F.2d 725 (11th Cir. 1988) (eighteen months; one month before trial); Trust Corp. of Montana v. Piper Aircraft Co., 701 F.2d 85 (9th Cir. 1983) ("more than two and a half years"); Central Milk Producers Coop. v. Sentry Food Stores, Inc., 573 F.2d 988 (8th Cir. 1978) ("more than two years");  Redd v. Shell Oil Co., 518 F.2d 311 (10th Cir. 1975) (three days before trial); Poole v. Lowe’s Home Centers, LLC, 2016 WL 7180148 (M.D. Tenn. Dec. 9, 2016) (18 months and "trial rapidly approaching); Worth v. Worth, 2016 WL 7007721 (E.D. Pa. Nov. 29, 2016) (nine months even though new lawyers); Sirisup v. It’s Thai, L.L.C., 2015 WL 404096 (C.D. Cal. Jan. 29, 2015) (six months); Residential Funding Co., LLC v. Decision One Mort. Co., LLC, CIV. No. 14-1737 (MJD/JSM) (D. Minn. Jan. 23, 2015) (was six-month delay excusable); Fenzel v. Group2 Software, LLC, 2014 WL 7404575 (D. Md. Dec. 29, 2014) ("nearly 2.5 years"); Reeves v. Town of Cottageville, 2014 U.S. Dist. LEXIS 118532 (D.S.C. Aug. 26, 2014) (five weeks, but much trial preparation); Koloff v. Metropolitan Life Ins. Co., 2014 U.S. Dist. LEXIS 80322 (E.D. Cal. June 10, 2014) (failed to raise in earlier related case and four months late in this case); Sadid v. Idaho State U., 2013 U.S. Dist. LEXIS 172495 (D. Idaho Dec. 6, 2013) (eighteen months and two weeks before trial);  Sharma v. VW Credit, Inc., 2013 U.S. Dist. LEXIS 38859 (C.D. Cal. March 20, 2013) (sixteen months); Cubica Group, LLP v. MAPFRE P.R. Am. Ins. Co., 2012 U.S. Dist. LEXIS 154728 (D.V.I. Oct. 29, 2012) (eight months); In re 444 North Northwest Hwy, LLC, 2012 Bankr. LEXIS 4279 (N.D. Ill. Sept. 11, 2012) (10 months; "fast-moving bankruptcy litigation"); Starkes v. Flechner, 2012 U.S. Dist. LEXIS 48757 (S.D. Fla. April 6, 2012) (four months); Kelly v. Roker, 2012 U.S. Dist. LEXIS 33604 (N.D. Cal. March 13, 2012) (various cases between these parties had been going on for five years); Sauer Inc. v. Honeywell Bld'g Solutions SES Corp., 2012 U.S. Dist. LEXIS 12881 (W.D. Pa. Feb. 2, 2012) (nine months); In re National Century Financial Enterprises, Inc., 2010 U.S. Dist. LEXIS 39524 (S.D. Ohio March 29, 2010) (five months); Marks Constr. Co., Inc. v. The Huntington Nat'l Bank, 2010 U.S. Dist. LEXIS 32998 (N.D. W. Va. April 2, 2010) (four years); Vinewood Capital, LLC v. Dar Al-Maal Al-Islami Trust, 2010 U.S. Dist. LEXIS 30358 (N.D. Tex. March 25, 2010) (four years); Coffeyville Resources Refining & Marketing v. Liberty Surplus Ins. Corp., 2009 U.S. Dist. LEXIS 85208 (D. Kan. Sept. 16, 2009) (more than one year and motions for summary judgments fully briefed); Picicco v. City of Calumet City, 2007 U.S. Dist. LEXIS 88389 (N.D. Ill. Dec. 3, 2007) (16 months, but court also peeked at the merits); McIntosh v. State Farm Fire & Cas. Co., 2006 U.S. Dist. LEXIS 96740 (S.D. Miss. Sept. 12, 2007) (one year); Eon Streams, Inc. v. Clear Channel Communications, Inc., 2007 U.S. Dist. LEXIS 23950 (E.D. Tenn. March 27, 2007) (court refused to recognize waiver by delay); Lyon v. Goldstein, 2006 U.S. Dist. LEXIS 71274 (D.N.J. Sept. 29, 2006) (thirteen months and the case was “poised for final resolution”); Conley v. Chaffinch, 431 F. Supp. 2d 494 (D. Del. 2006) (nine months too long); Modanlo v. Ahan, 342 B.R. 230 (D. Md. 2006) (five month delay); Magin v. Monsanto Co., 2005 U.S. Dist. LEXIS 19225 (N.D. Ill. Sept. 1, 2005) (delay of "several years" mentioned, but not clear that delay was decisive); Corso v. Suburban Bank & Trust Co., 2005 U.S. Dist. LEXIS 423 (N.D. Ill. Jan. 12, 2005) (20 months); Mahtesian v. Snow, 2004 U.S. Dist. LEXIS 25656 (N.D. Cal. Dec. 14, 2004) (waited until conclusion of case); Gross v. SES Americom, Inc.,  307 F. Supp. 2d 719 (D. Md. 2004) (approximately one year after suit filed); In re Internet Navigator, Inc., 293 B.R. 198 (N.D. Ia. 2003) (too late to object to fees after case in question settled); Dalleo v. River Construction, Inc., 2003 U.S. Dist. LEXIS 6545 (E.D. La. April 14, 2003) (almost two-year delay); Safe-T-Products, Inc. v. Learning Resources, Inc., 2002 U.S. Dist. LEXIS 20540 (N.D. Ill. October 24, 2002) (six months did not save individual lawyer, but did save rest of firm); In re Rite Aid Corp. Secs. Litig. v. Grass, 139 F. Supp. 2d 649 (E.D. Pa. 2001) ("at least nine months (and more like thirteen)"); Geissal v. Moore Medical Corp., 92 F. Supp. 2d 945 (E.D. Mo. 2000); Universal City Studios, Inc. v. Reimerdes, 98 F. Supp. 2d 449 (S.D.N.Y. 2000) (less than two months before trial);  In re A&T Paramus Co., Inc., 1999 Bankr. LEXIS 1841 (D.N.J. 1999) ("nearly a year and a half"); Resolution Trust Corp. v. Fidelity and Deposit Co. of Maryland, 1997 U.S. Dist. LEXIS 22180 (D.N.J. 1997) (five years); Szoke v. Carter, 974 F. Supp. 360 (S.D.N.Y. 1997) (22 months); Abney v. Wal-Mart, 984 F. Supp. 526 (E.D. Tex. 1997) (one year); Concerned Parents of Jordan Park v. Housing Authority of the City of St. Petersburg, 934 F. Supp. 406 (M.D. Fla. 1996) (five months);  Weeks v. Samsung Heavy Ind. Co., LTD, 909 F. Supp. 582 (N.D. Ill. 1996) (two years); Chemical Waste Mgm't, Inc. v. Sims, 875 F. Supp. 501 (N.D. Ill. 1995) (21 months);  Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099 (D.N.J. 1993) (three years and four months before trial); Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200 (E.D. Pa. 1992) (two years, and three weeks before trial); Medicine Shoppe Int'l., Inc. v. Rebs Co., 737 F. Supp. 70 (E.D. Mo. 1990) (one year);  Employers Ins. of Wausau v. Albert D. Seeno Constr. Co., 692 F. Supp. 1150 (N.D. Cal. 1988) ("well over a year"); Zimmerman v. Duggan, 81 Bankr. 296 (E.D. Pa. 1987) ("nearly three years"); Warpar Mfg. Corp. v. Ashland Oil, Inc., 606 F. Supp. 852 (N.D. Ohio 1984) (21 months and six weeks prior to trial); Glover v. Libman, 578 F. Supp. 748 (N.D. Ga. 1983) (thirteen months); Jackson v. J.C. Penney Co., Inc., 521 F. Supp. 1032 (N.D. Ga. 1981) (fifteen months); Amparano v. Asarco, Inc., 93 P.3d 1086 (Ariz. App. 2004) (waited four years from first learning that the lawyer was threatening to file this suit); Liberty Nat'l Enterprises, L.P. v. Chicago Title Ins. Co., 2011 Cal. App. LEXIS 491 (Cal. App. April 26, 2011) (delay of two years and case partially tried); Life Care Centers of America v. CalOptima, 35 Cal. Rptr. 3d 387 (Cal. App. 2005) (motion to disqualify amicus counsel after brief filed, but did not object when amicus counsel earlier sought leave to file); Western Continental Co. v. Natural Gas Corp., 261 Cal. Rptr. 100 (Cal. App. 1989); River West, Inc. v. Nickel, 234 Cal. Rptr. 33 (Cal. App. 1987) (three years); Zayas-Bazan v. Marcelin, 2010 Fla. App. LEXIS 10579 (Fla. App. July 21, 2010) (2 1/2 years); Rahman v. Jackson, 2008 Fla. App. LEXIS 15418 (Fla. App. Oct. 10, 2008) (“more than two years”); Freedom Commerce Centre Venture v. Ranson, 823 So. 2d 817 (Fla. App. 2002) (Fla. App. July 19, 2002) (365th day after final judgment); Case v. City of Miami, 756 So. 2d 259 (Fla. App. 2000) (seven years); Yates v. Dublin Sir Shop, Inc., 579 S.E.2d 796 (Ga. App. 2003) (conflict not grounds for new trial when not raised for two years and after adverse judgment); Georgia Baptist Health Care System, Inc. v. Hanafi, 559 S.E.2d 746 (Ga. App. 2002) (25-month delay part of reason for denial of motion); Head v. CSX Transportation, Inc., 577 S.E.2d 12 (Ga. App. 2003) (conflict raised for first time in motion for new trial); Lau v. Valu-Bilt Homes Ltd., 582 P.2d 195 (Haw. 1978) ("more than one year"); In re Estate of Klehm, 842 N.E.2d 1177 (Ill. App. 2006) (four years); In re Estate of Kirk, 686 N.E.2d 1246 (Ill. App. 1997) (three and a half years); Corbello v. Iowa Production Co., 787 So. 2d 596 (La. App. 2001) (eight months and eve of trial); State of Minnesota v. 3M Co., No. 27-CV-10-28862 (Minn. Dist. Ct. Feb. 5, 2016) (16 months); In re Estate of Gillies v. Gillies, 830 So. 2d 640 (Miss. 2002) (Miss. November 14, 2002) (waited until lawyer sought award of fees); Williams v. Bell, 793 So. 2d 609 (Miss. 2001): Colson v. Johnson, 764 So. 2d 438 (Miss. 2000) (three years; four months prior to trial); In re Duvall, 67 S.W.3d 736 (Mo. App. 2002) (one year and after other side awarded summary judgment); Terre Du Lac Prop. Owners' Assoc., Inc. v. Shrum, 661 S.W.2d 45 (Mo. App. 1983) (after trial); Pro-Hand Services Trust v. Monthei, 49 P.3d 56 (Mont. 2002) (Mont. June 18, 2002) (five months); United Nuclear Corp. v. General Atomic Co., 629 P.2d 231 (N.M. 1980); Ike & Sam’s Group, LLC v. Brach, 2016 WL 1355703 (N.Y. App. Div. April 6, 2016) (two years and eight months); In re Peters, 2015 WL 25469 (N.Y. App. Div. Jan. 2, 2015) (one year); Stilwell Value Partners IV, L.P. v. Cavanaugh, 2014 WL 7372651 (N.Y. App. Div. Dec. 30, 2014) (two years); Shah v. Ortiz, 2013 N.Y. Misc. LEXIS 3204 (N.Y. Sup. Ct. July 22, 2013) (18 months, relying on St. Barnabas, see below); Hele Asset, LLC v. S.E.E. Realty Assocs, 2013 N.Y. App. Div. LEXIS 2982 (N.Y. App. May, 2013); Lake v. Kaleida Health, 2009 N.Y. App. Div. LEXIS 2352 (N.Y. App. Mr. 27, 2009) (two years and case at “advanced stage”); Marcus v. Marcus, 793 N.Y.S.2d 375 (N.Y. App. 2005) (one year and just prior to trial); St. Barnabas Hospital v. New York City Health & Hospitals Corp., 775 N.Y.S.2d 9 (N.Y. App. 2004) (one year delay contributed to denial of motion to disqualify); Spatz v. Ridge Lea Associates, LLC, 765 N.Y.S.2d 84 (Oct. 2, 2003) (time not stated); Alpert v. Alpert, 741 N.Y.S.2d 869 (N.Y. App. May 23, 2002) (eleven years); Eisenstadt v. Eisenstadt, 723 N.Y.S.2d 395 (N.Y. App. 2001); McDade v. McDade, 659 N.Y.S.2d 530 (N.Y. App. 1997) (two and a half years); Lewis v. Unigard Mut. Ins. Co., 442 N.Y.S.2d 522 (N.Y. App. 1981) (six years); Young v. Oak Crest Park, Inc., 428 N.Y.S.2d 69 (N.Y. App. 1980) (four years); Barberton Rescue Mission v. Hawthorn, 2003 Ohio App. LEXIS 1076 (Ohio App. March 12, 2003) (one day after court's ordered deadline and five months after suit was filed); Sarbey v. National City Bank, 583 N.E.2d 392 (Ohio App. 1990); Hayes v. Central States Orthopedic Specialists, Inc., 51 P.3d 562 (Okla. 2002) (eight months); Digital Design Group, Inc. v. Information Builders, Inc., 2000 Okla. Civ. App. LEXIS 1 (Okla. App. 2000) (one year); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400 (Tenn. 1991); Seibers v. Pepsi-Cola Bottling Co., 2000 Tenn. App. LEXIS 818 (Tenn. App. December 21, 2000); Henry v. Henry, 2014 Tex. App. LEXIS 4233 (Tex. App. April 18, 2014) (6 1/2 months); Spearman v. Morris, 2014 Tex. App. LEXIS 2363 (Tex. App. Feb. 27, 2014) (raised conflict for first time in appeal brief ); In re Gunn, 2013 Tex. App. LEXIS 12727 (Tex. App. Oct. 15, 2013) (15 months); BP Am. Prod. Co. v. Zaffirini, 2013 Tex. App. LEXIS 11171 (Tex. App. Aug. 30, 2013) (seven months); In re Louisiana Texas Healthcare Mgm't, L.L.C., 2011 Tex. App. LEXIS 6289 (Tex. App. Aug. 11, 2011) (13 months); Buck v. Palmer, 2012 Tex. LEXIS 742 (Tex. Aug. 31, 2012) (seven months); In re Aker Kvaerner/IHI, 2010 Tex. App. LEXIS 7710 (Tex. App. Sept. 20, 2010) (approximately 10 months); In re Jameson, 2004 Tex. App. LEXIS 1220 (Tex. App. Feb. 9, 2004) (after trial); Commissioner’s Court v. Buster, 2003 Tex. App. LEXIS 10047 (Tex. App. Nov. 25, 2003) (three years and 30 days before trial); Lehmberg v. Lehmberg, 2003 Tex. App. LEXIS 3667 (Tex. App. April 30, 2003) (sixteen months and day of trial); Davis v. Weatherston, 2002 Tex. App. LEXIS 3194 (Tex. App. May 8, 2002) (raised after trial); Massey v. Columbus State Bank, 35 S.W.3d 697 (Tex. App. 2000) (raised first time on appeal); Jones v. Lurie, 32 S.W.3d 737 (Tex. App. 2000) (raised first time on appeal); Eubanks v. Klickitat County, 2014 Wash. App. LEXIS 1346 (Wash. App. June 3, 2014) (18 months); In Re Estate of Jensen, 2009 Wash. App. LEXIS 268 (Wash. App. Feb. 3, 2009) (three years; delay was one of two reasons for denying motion); FSBIC v. Intercapital Corp. of Oregon, 738 P.2d 263 (Wash. 1987); Moss v. Fahey, 2002 Wash. App. LEXIS 577 (Wash. App. 2002) (three years and after judgment); Montalvo v. Judge, 2009 Wisc. App. LEXIS 706 (Wis. App. Sept. 9, 2009)  (five months; “three prong test”); Batchelor v. Batchelor, 570 N.W.2d 568 (Wis. App. 1997) (three months); Magin v. Solitude Homeowner's Inc., 2011 Wyo. LEXIS 103 (Wyo. June 30, 2011) (one year and much work had been done); E.A.G. v. D.L.G., 2010 YKSC 24 (CanLII) (Yukon S. Ct. June 4, 2010) (six months); Sheriff v. Apps, 2012 ONSC 565 (CanLII) (Super. Ct. Ont. Feb. 16, 2012) (two years); N.M. Davis Corp. Ltd. v. Ross, 2012 ONSC 1697 (CanLII) (Super. Ct. Ont. March 20, 2012) (two days before summary judgment).

        In Vinewood Capital v. Sheppard Mullin Richter & Hampton, LLP, 2010 U.S. Dist. LEXIS 85575 (N.D. Tex. Aug. 19, 2010), a three-year delays resulted in dismissal of a breach of fiduciary claim by an alleged former client against its law firm rather than a disqualification.  The court charged the client with knowledge of the client’s real law firm for part of the three years.

        In Buck v. Palmer, 2010 Tex. App. LEXIS 10082 (Tex. App. Dec. 21, 2010), the court held that the knowledge of “local counsel” of the conflicts was imputed to “lead counsel” and the client for purposes of computing the delay.  Thus, the delay in informing “lead counsel” is charged to the client for delay purposes.

        Greenawalt v. Kissinger, 2015 WL 6756305 (Pa. App. Nov. 4, 2015). After a bench trial in this ejectment action, Occupant was ousted from a house. Occupant appealed raising a number of grounds not relevant to this audience. One ground was that the testimony of a lawyer, against Occupant, was not credible because the lawyer/witness had a conflict of interest in that he had represented various parties relating to the property. In this opinion the appellate court rejected that ground because Occupant had not raised it before or during trial. Thus, Occupant waived it.

        Cases Upholding Disqualification Although Delay Occurred.  State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d 380 (8th Cir. 1979) ("more than two years"); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973) (three years); Velazquez-Velez v. Molina-Rodriguez, 2017 WL 395105 (D.P.R. Jan. 30, 2017) ("near the start of discovery" soon enough); Lennar Mare, LLC v. Steadfast Ins. Co., 2015 WL 1540638 (E.D. Cal. April 7, 2015) (five months); Bird v. Metropolitan Cas. Ins. Co., 2011 U.S. Dist. LEXIS 6055 (W.D. Wash. Jan. 18, 2011) (duty to detect conflict that of lawyer, not client); Chinese Automobile Distributors of Amer. LLC v. Bricklin, 2008 U.S. Dist. LEXIS 106179 (S.D.N.Y. Jan. 8, 2009) (nine month delay; delay a factor only in “extreme cases”); Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 2007 U.S. Dist. LEXIS 83150 (N.D. Cal. Oct. 29, 2007) (two month delay and no prejudice to other side); Republic Services, Inc. v. Liberty Mut. Ins. Co., 2006 U.S. Dist. LEXIS 77363 (E.D. Ky. Oct. 20, 2006) (three months); FMC Technologies, Inc. v. Edwards, 420 F. Supp. 2d 1153 (W.D. Wash. 2006) (waited 6 months, but was waiting for another motion to be decided); HealthNet, Inc. v. Health Net, Inc., 289 F. Supp. 2d 755 (S.D. W. Va. 2003); Maturi v. McLaughlin Research Corp., 2001 U.S. Dist. LEXIS 21893 (D.N.H. 2002) (delay of ten months "irrelevant"); Imbesi v. Imbesi, 2001 U.S. Dist. LEXIS 17689 (E.D. Pa. 2001) (four months); Colorpix Systems of America v. Broan Mfg. Co., 131 F. Supp. 2d 331 (D. Conn. 2001) (18 months); Loomis v. Consolidated Stores Corp., 2000 U.S. Dist. LEXIS 12391 (S.D.N.Y. 2000) (client knew for year and a half, but did not appreciate significance of conflict; lawyer did not learn about conflict until much later);  Montgomery Academy v. Kohn, 82 F. Supp. 2d 312 (D.N.J. 1999) ("less than three months"); Islander East Rental Program v. Ferguson, 917 F. Supp. 504 (S.D. Tex. 1996) (four months); Healy v. Axelrod Construction Co. Defined Benefit Pension Plan and Trust, 155 F.R.D. 615 (N.D. Ill. 1994) ("no trial date"); British Airways, PLC v. Port Authority of New York and New Jersey, 862 F. Supp. 889 (E.D.N.Y. 1994) ("only two years"); Image Tech. Services v. Eastman Kodak Co., 820 F. Supp. 1212 (N.D. Cal 1993) (one year); Baird v. Hilton Hotel Corp., 771 F. Supp. 24 (E.D.N.Y. 1991) (thirteen months);  Little Rock School Dist. v. Borden, Inc., 1979 U.S. Dist. LEXIS 13217 (E.D. Ark. 1979) ("short"); Richard B. v. State, 71 P.3d 811 (Alas. 2003) (two months); Borsuk v. Ryan, 2003 Cal. App. Unpub. LEXIS 9984 (Cal. App. Oct. 24, 2003) (approximately five years); Key Largo Rest., Inc. v. T.H. Old Town Assoc., Ltd., 759 So. 2d 690 (Fla. App. 2000) (five years, but action stayed by bankruptcy - vigorous dissent); Shuttleworth v. Rankin-Shuttleworth of Ga., LLC, 2014 Ga. App. LEXIS 461 (Ga. App. July 8, 2014) (court forgave 11-month delay given procedural status of case); Casco Northern Bank v. JBI Associates, Ltd., 667 A.2d 856 (Me. 1995) (about a month, but court said that delay alone should not be a reason to deny a motion to disqualify); In re Dawn Gayken, 2005 Tex. App. LEXIS 4688 (Tex. App. June 16, 2005) (one or two months); In re Marriage of Bal and Sahota, 2006 Wash. App. LEXIS 529 (Wash. App. March 27, 2006) (party waited 18 months, but filed immediately after Bar investigation closed); Shelana Holdings Ltd. v. Max Kerzner Investments Inc., 2010 ONSC 2356 (CanLII) (Super. Ct. Ont. April 22, 2010).

        Unique Cases; Failed to Move in Another Case.  In  Ali v. American Seafoods Co., LLC, 2006 U.S. Dist. LEXIS 29880 (W.D. Wash. May 15, 2006), the moving party waited only six weeks to make the motion.  The court said that was timely.  The wrinkle was that the moving party had not made such a motion involving the same opposing lawyer in another similar case.  The court said that was not a waiver as to this case.  Neither the court nor we are aware of this issue arising before.  More recently, in Javorski v. Nationwide Mut. Ins. Co., 2006 U.S. Dist. LEXIS 81490 (M.D. Pa. Nov. 6, 2006), the court relied in part on the fact that the moving party had not made a motion in other cases in finding a waiver.

        Client "Waives" Civil Cause of Action against Lawyer for Conflict of Interest by not Moving to Disqualify Lawyer in Earlier Matter. Swilley v. Tipton, 2007 U.S. Dist. LEXIS 7481 (E.D. Ky. Jan. 30, 2007).  In Centra, Inc. v. Estrin, 2007 U.S. Dist. LEXIS 31409 (E.D. Mich. April 30, 2007), the court upheld dismissal of a malpractice case based on conflict because the plaintiff knew about the conflict a year before filing the suit.

        Remanded for More Information.  Lackow v. Walter E. Heller & Co. Southeast, Inc., 466 So. 2d 1120 (Fla. App. 1985) ("months;" remanded for findings on reason for delay); Douglas v. Jepson, 945 P.2d 244 (Wash. App. 1997) (delay "more than six months" but remanded for further findings on reason for delay).

        Knowledge but not Joined.  Richmond American Homes of Northern California, Inc. v. Air Design, Inc., 2002 Cal. App. Unpub. LEXIS 6948 (Cal. App. July 25, 2002).  The party moving to disqualify arguably knew about the possibility of a conflict for some time.  When it was finally made a party in this case, it filed its motion to disqualify along with its answer.  In response to the motion the law firm argued that the moving party should have filed an injunction action to prevent the representation when it first learned of the potential conflict.  The Appellate Court disagreed and ruled the motion should be granted.

        Denial of Withdrawal Because of Delay.  Irwin v. Mascott, 2006 U.S. App. LEXIS 18984 (9th Cir. July 27, 2006).  Law firm moved to withdraw because it had a conflict of interest.  The trial court denied the motion because the law firm waited “several years” to bring the motion.  In this opinion the appellate court affirmed.

        Treatise.  Rotunda & Dzienkowski § 1.7-1(d).

Revocation of Waiver

        A lawyer has agreed to represent A and B in a business transaction and obtains a written conflicts waiver from them.  After several months A becomes unhappy with the lawyer, objects to the "conflict of interest," and tries to fire the lawyer.  Can she do that?  A client can almost always discharge her lawyer, Model Rule 1.16(a)(3) and Model Code DR 2-110(B)(4).  (Examples of situations causing us to say "almost" are the civil rights laws, "whistle-blower" situations, and the right of a tribunal to keep a lawyer in a case.)  So, as to her own representation, a client can always "revoke" a conflicts waiver.

        Can A also revoke the waiver as to the lawyer's representation of B, the other party?  We have never seen a case that answers the question directly.  That is, can a client who has waived a conflict of interest as to a lawyer's representation of someone else revoke that waiver?

        Restatement. The ALI made a brave stab at describing situations in which a client may, or may not, prevent a lawyer from continuing to represent another party by revoking a waiver previously given, at cmt. f to § 122 (the section dealing with waivers).  The cases cited in the Reporter's Note on cmt. f, while tangentially relevant, simply do not purport to address the issue specifically.  In none of them did the party resisting the disqualification rely on the fact that a waiver had been given.  Cmt. f provides in pertinent part:

. . . Whether the lawyer may continue the other representation depends on whether the client was justified in revoking the consent (such as because of a material change in the factual basis on which the client originally gave informed consent) and whether material detriment to the other client or lawyer would result. . . .

* * * * *

In the absence of valid reasons for a client' revocation of consent, the ability of the lawyer to continue representing other clients depends on whether material detriment to the other client or lawyer would result and, accordingly, whether the reasonable expectations of those persons would be defeated.  Once the client or former client has given informed consent to a lawyer's representing another client, that other client as well as the lawyer might have acted in reliance on the consent.  For example, the other client and the lawyer might already have invested time, money, and effort in the representation.?

        In the following cases cited in the Reporter's Note the representation started out as joint (with implied or express waivers), then something changed - the facts, the attitude of a party, the conduct of the lawyer, and so forth.  Again, in none of them did the court discuss the concept of a party's revoking a consent to a lawyer's representing another party.  Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979); Allegaert v. Perot, 565 F.2d 246 (2d Cir. 1977); Interstate Properties v. Pyramid Co., 547 F. Supp. 178 (S.D.N.Y. 1982); In re Lanza, 322 A.2d 445 (N.J. 1974); In re Braun, 227 A.2d 506 (N.J. 1967); In re Banks, 584 P.2d 284 (Ore. 1978); In re Eltzroth, 679 P.2d 1369 (Ore. App. 1984).

        While not exactly on point, the Ohio Supreme Court addressed the issue in the context of a conflicts waiver attendant to a divorce action.  In Sturm v. Sturm, 574 N.E.2d 522 (Ohio 1991), the court said:

Therefore, we hold that where a party expressly waives a conflict of interest by a written judgment entry signed by the party, such waiver remains in effect as a matter of law when the action of which it was a part is dismissed voluntarily and refiled in another county.

        D.C. Bar Op. 317 (November 2002), N.C. Op. 2007-11 (July 2007), N.Y. Op. 903 (Jan. 2012) adopt, for the most part, the position of Comment f to Restatement § 122.  This is also the gist of new Comment [21] to Model Rule 1.7.  See also Richard Painter, Advance Waiver of Conflicts, 8 Geo. J. Legal Ethics 289-329 (Winter 2000).

        Treatise.  Hazard, Hodes, & Jarvis § 10.8.

        Waiver Forms - separate page - click here.

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