Wisconsin Lawyer
Vol. 85, No. 6, June 2012

Question

One of my clients is withdrawing his consent to my representation of another client in a different matter. Do I have to withdraw from representing the second client just because the first client withdrew the waiver of the conflict?

Answer

This is a very difficult situation and is one that does not arise often. Questions about withdrawing consent for waiver of a conflict of interest more often arise when a lawyer is representing two clients jointly and a problem arises with the joint representation because the clients' interests diverge during the representation. In this case, however, I understand there is not joint representation; rather, one client had agreed that you could represent the new or other client in a different matter even though the two clients' interests are different. This scenario exists, for example, when the first client is being provided representation on the matter by an attorney from another firm but still has to waive the conflict of interest because the client is still a current client of your law firm.

The Rules of Professional Conduct provide no specific guidance concerning the continued validity of a waiver of a conflict of interest. Each situation will depend on the specific facts and in particular on the nature and type of representation being provided. SCR 20:1.7 is Wisconsin's general rule on conflicts of interest. SCR 20:1.7(b) relates to waivers of conflicts of interest and provides as follows:

"(b) Notwithstanding the existence of a concurrent conflict of interest under par.(a), a lawyer may represent a client if:

"(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

...

"(4) Each affected client gives informed consent, confirmed in a writing signed by the client."

This rule creates two specific requirements for a valid waiver of a conflict of interest: 1) the lawyer reasonably believes that he or she can provide competent and diligent representation to each client; and 2) each client gives informed consent, confirmed in writing and signed by the client.

The question you posed is what happens if a client originally gives the informed consent but then wishes to revoke the informed consent. Comment 21 to SCR 20:1.7, although not binding authority, provides some guidance for the lawyer. This comment provides as follows:

"Revoking Consent. [21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result."

This comment indicates that the lawyer must assess each situation to determine whether or not the lawyer can continue to represent the second client. The lawyer must consider 1) the nature of the conflict, 2) whether the first client revoked consent because of a material change in circumstances, 3) the second client's reasonable expectations, and 4) whether material detriment to the second client or the lawyer would result.

The comment to Section 122 of the Restatement of Law Governing Lawyers provides some additional guidance:

"Revocation of consent through client action or a material change of circumstances. A client who has given informed consent to an otherwise conflicted representation may at any time revoke the consent (see § 21(2)). Revoking consent to the client's own representation, however, does not necessarily prevent the lawyer from continuing to represent other clients who had been jointly represented along with the revoking client. 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 addition, if the client had reserved the prerogative of revoking consent, that agreement controls the lawyer's subsequent ability to continue representation of other clients."

Conclusion

If there is a significant change in the circumstances that existed when the first client waived the conflict, the lawyer may not be able to continue the representation of the second client. However, if withdrawal of the consent will cause significant harm to the second client, such as requiring hiring a new lawyer during pending litigation, the lawyer may be able to continue the representation of the second client. If the lawyer continues the representation, the lawyer must treat the client who revoked the waiver of conflict as a former client under SCR 20:1.9 and take necessary steps to maintain the confidentiality of the information the lawyer has obtained about the withdrawing client.

If one client revokes a waiver of a conflict or consent to a conflict, the other client may have reasonable expectations that the lawyer will continue to represent the other client in the pending representation. Lawyers should address this potential circumstance in the waiver-of-conflict document so there is no confusion or loss of representation in instances like this.

Wisconsin Lawyer