Not All Conflicts of Interest Can Be Waived!

At the James T. King Bankruptcy Inn of Court, we discussed whether certain fact patterns resulted in actual conflicts. The issues became “as clear as mud” when an attorney cited California Rules of Professional Conduct Rule 3-310.

Rule 3-310 states, in pertinent part:

(C) A member shall not, without the informed written consent of each client:

(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or

This implies that a member is allowed to accept or continue representation of more than one client in a matter with the interest of the clients ACTUALLY CONFLICT so long as there is written consent.

Just because this section seems to imply that this is a possibility, there are situations where the client cannot waive the conflict, even if he wanted to!

California law identifies five situations where a client’s waiver would be unavailing: 1) the lawyer is unable to provide competent representation to each client; 2) the representation is prohibited by law; 3) the representation involves assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; 4) the lawyer is precluded by duties to one client from making sufficient disclosure to the other, rendering the latter’s informed consent unobtainable; 5) the client lacks capacity to give informed consent.

Kevin Mohr has written an in depth article on this subject. You can find it here.

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