Last Updated on May 11, 2022 by Fair Punishment Team
If an attorney is representing two or more parties involved in a legal matter, this dual representation can create a conflict of interest for the attorney.
Many attorneys will believe that they can represent clients on both sides fairly but their representation can become limited. This is because the attorney can not try and negotiate a deal for either party in any ethical terms. Trying to do so will often create conflicts of interest on either side.
Therefore, if an attorney decides to undertake dual representation during a court case, they must obtain a conflict waiver. And, this waiver must come from each party involved in the case.
So, what exactly is a conflict waiver? In today’s article, we will be explaining what a conflict waiver is so you can fully understand how this document works if it is ever required in a legal matter that you are a part of.
A Conflict Waiver: What Is It?
A conflict waiver is a written document that allows different parties to a legal case to participate. This document is signed by each side and specifically discloses the benefits, risks, and possible alternatives of dual representation.
When a conflict waiver is executed efficiently and correctly, it will allow an attorney to avoid certain claims made by a party about any unethical conduct or possible malpractice in regards to the attorney’s dual representation.
An attorney will typically obtain a conflict waiver as a way to maintain valuable clients and highly profitable cases when they may need to withdraw from a case in certain circumstances.
What is The Process of a Conflict Waiver?
The process of a conflict waiver has three main parts. To begin with, the attorney will agree to represent the clients involved in the legal battle. It is at this point that the attorney will disclose the conflict in full. They will also inform their clients of the possible advantages, disadvantages, and potential alternatives to dual representation.
Once the discussion of possible consequences of dual representation has been made, as well as full disclosure of its pros and cons, the attorney will ask each potential client to sign a conflict waiver. This document outlines everything that the attorney has already discussed with the clients and also clearly states each party’s agreement to retain their attorney even if or when a conflict of interest arises.
The final step of a conflict waiver is when the attorney decides and believes that they have a valid reason to fairly and appropriately manage dual representation for the agreed legal case.
Advantages of a Dual Representation
There are some key advantages of dual representation during a legal case. The main reason many clients decide to go down this route is the money and time they can save. For instance, if a divorce proceeding is going ahead but the husband and wife have already agreed on custody, the division of their marital property or properties, and alimony, using one attorney can save those involved a significant amount of money. It can also speed up the process considerably.
Nevertheless, the attorney can not help resolve a dispute between the two if they have not decided on the above such as alimony and custody. The attorney is not permitted to advocate a strong case for one or the other.
It is also important to note that neither party involved with dual representation can enjoy complete attorney-client privilege and confidentiality. This is because any disclosures made by one party that could affect the other party’s position in material terms would need to be disclosed by the attorney.
A conflict waiver document is in place to advise all parties involved in a legal case to consider and consult independent counsel before they agree to dual representation. This will protect the attorney against any possible malpractice claims or ethical issues from either side. However, this rarely occurs if the attorney is professional in their conduct.
Nevertheless, conflict waivers do not mean an attorney is exempt from their duty of avoiding inexorable conflict scenarios.
If the attorney finds that there is no practical or ethical way to provide a competent representation for each client, then the attorney will have to ethically remove themselves from the legal case.
A Simple Conflict Waiver is Not Always Enough
In some cases, simple conflict waivers are not enough. It is simply not sufficient to just confirm a client’s waiver of conflict for them to consent to the dual representation. Effective disclosures tend to require more than this.
Rules and regulations state that an attorney must propose a process of conduct to their clients. This should include sufficient information and explanations about the risks of consenting dual representation. And, the conflict waiver must inform clients of possible alternatives to the attorney’s proposed course of conduct.
Therefore, this effectively means that an attorney should disclose the information required, and expected by clients before signing the waiver.
Every attorney should include certain topics when trying to seek the consent of a client or a waiver. That being said, there is currently no template that attorneys can follow to form a full disclosure when seeking their client’s consent of dual representation.
To achieve effective consent from clients, conflict waiver documents require certain types of content. However, this varies depending on the circumstances and facts involved in the specific legal case and representation. So, the content for one client would be vastly different from another depending on their specific representation and legal case. Another factor that affects the waiver is if the client has had any prior representations.
In legal proceedings where an attorney decides to undertake dual representation, they must obtain a conflict waiver from all parties involved. This can be between two or more parties. For instance, in a divorce case, the attorney would require a conflict waiver from both husband and wife if a dual representation has been chosen.
This written document is signed by all parties and specifically discloses the benefits, risks, and possible alternatives of dual representation. This is so the attorney can avoid claims from all parties if they believe any unethical conduct or malpractice has been experienced due to the dual representation.