Editor's Note: This opinion was originally published as RPC 168 (Revised).
Waiver of Objection to a Possible Future Conflict of Interest
Opinion rules that a lawyer may ask her client for a waiver of objection to a possible future representation presenting a conflict of interest if certain conditions are met.
The ABA recently issued Formal Opinion 93-372 allowing waivers of future conflicts of interest under certain circumstances. The ABA Model Rules address conflicts of interest in Model Rule 1.7. Model Rule 1.7 is substantially identical to Rule 5.1(a) and (b) of the North Carolina Rules of Professional Conduct. Is it permissible for a North Carolina lawyer to obtain an advance waiver of future conflicts from a client or prospective client?
Yes, it is permissible provided the following conditions, which are set forth and explained in ABA Formal Opinion 93-372, are met:
1) The prospective waiver of a future conflict of interest is in writing;
2) Although the future conflict may not be known to exist at the time of the waiver, the writing must demonstrate that the future conflict, when it arises, was within the contemplation of the parties;
3) It must be patently clear that the existing representation will not be adversely affected by the subsequent representation; and
4) The subsequent representation will not result in disclosure or use of information imparted by the client in the representation existing at the time of the waiver, or any subsequent representation of that client.
ABA Formal Opinion 93-372 is hereby adopted by reference.
If a waiver of future conflicts of interest is obtained from a client or a prospective client, will it be effective?
Yes, if the conditions set forth in Opinion #1 were met at the time the written waiver was executed and, if a conflict subsequently arises, the conflict was contemplated by the parties at the time the written waiver was executed, the existing representation will not be adversely affected by the subsequent representation, and the subsequent representation will not result in the disclosure or use of confidential information of the client giving the waiver.
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