Ethics in Brief: When Waiving Really Means Bye-Bye

Can Conflict Waivers Always Cure All?

By Nicholas Pilchak

Clients with a need for expensive legal representation often seek to save money and pool resources by hiring the same lawyer for the same or overlapping matters.  A thoughtful lawyer could easily presume that she may take on multiple clients, as long as she completely and candidly explains the risks of joint representation to each client and secures a knowing waiver from each.  After all, if the clients each knowingly and intelligently give up their right to conflict-free counsel, and the lawyer believes she can proceed without being compromised, who could complain?

The court, for one.  In a venerable case on the subject, the Supreme Court ruled that courts have an independent interest in the integrity of their proceedings, and can reject conflict waivers even when offered by all parties.  See Wheat v. United States, 486 U.S. 153, 164 (1988).

First, the basics.  California Rule of Professional Conduct 1.7(a) prevents a lawyer from representing a client if the representation is “directly adverse to another client in the same or a separate matter.”  But the rule has an exception met, in part, when each client provides informed written consent.   

Same for Rule 1.7(b), which prohibits representations beyond the direct adversity of 1.7(a) even where “there is a significant risk” that the representation “will be materially limited by the lawyer’s responsibilities to or relationships with” a current or former client.  But the same exception applies—based, in part, on informed written consent. 

Reading the Rules alone, a lawyer could be forgiven for thinking that informed written consent—and otherwise complying with Rule 1.7(d)—cures all potential conflict ills.  But not so.  In Wheat v. United States, the Supreme Court ruled that trial courts have the discretion to reject conflict waivers where there is a serious potential for conflict.  486 U.S. at 164.  It began by noting the Sixth Amendment guarantee of the right to assistance of counsel.  Id. at 158.  The Court also ruled that courts should “recognize a presumption in favor of [parties’] counsel of choice,” but found that the presumption was not absolute.  Id. at 164.  

Wheat was charged for his role in a sprawling drug conspiracy.  His proposed attorney had represented a co-defendant at the co-defendant’s trial, in which the co-defendant was acquitted.  The attorney also represented a second co-defendant who pled guilty, and would likely have served as a witness at Wheat’s trial.  

Likely impressed by the attorney’s trial record, Wheat sought to hire the lawyer for Wheat’s own impeding trial.  The government objected on the grounds of an apparent conflict of interest posed (at a minimum) by the attorney’s inability to effectively cross-examine his own former client at Wheat’s imminent trial.  

For his part, Wheat argued that the potential conflict was “highly speculative,” and stressed that all three defendants had “agreed to allow [the attorney] to represent [Wheat] and to waive any future claims of conflict of interest.”  Id. at 156–57.  Wheat contended that the government “was manufacturing implausible conflicts” simply to disqualify a particularly effective adversary.  Id. at 157.

The Court agreed that it is often difficult to predict in advance how conflict scenarios will unfold, observing that the trial court must decide whether to allow a conflict waiver “not with the wisdom  of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly.”  Id. at 164.  But the Court found that this uncertainty required affording the trial court more latitude, not less, in rejecting conflict waivers based on “a showing of a serious potential for conflict.”  Id. 

The Wheat Court reached this conclusion by weighing against a defendant’s substantial Sixth Amendment rights the independent interest of the courts in the integrity of their proceedings.  Quoting a Third Circuit decision, the Court recited how an actual conflict of interest breaches not merely the Rules of Professional Responsibility, but also “invites disrespect for the integrity of the court, [and] is detrimental to the independent interest of the trial judge” in avoiding attack over the fairness of his own proceedings.  Id. at 163, quoting United States v. Dolan, 570 F.2d 117, 1184 (3rd Cir. 1978).  

In that regard, the Court anticipated the difficulties facing a trial court in assessing the adequacy of a conflict waiver, noting the risk of “being ‘whip-sawed’ by assertions of error no matter which way they rule.”  486 U.S. at 161.  On the one hand, denying a conflict waiver permits a party to complain that his case was impaired by being denied his counsel of choice.  On the other hand, at least in the criminal context, a defendant whose lawyer’s advocacy is impaired by a conflict may later claim ineffective assistance.  

The Wheat opinion sagely noted that 

[t]he likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government’s witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.

Id. at 162–63.  The Supreme Court found that the trial court—laboring under these real-world limitations—had discretion to refuse the proffered conflict waivers and deny Wheat his counsel of choice, notwithstanding his Sixth Amendment rights.  

Wheat is a potent lesson that, despite the language of Rule 1.7(a) and (b), conflict waivers alone aren’t a bulletproof guarantee of an unimpeachable representation.