checklist for eliciting consent to waive conflict

The need for informed consent

To elicit an informed consent to waive a conflict of interest, you are obliged to explain in plain language the circumstances of the conflict.

The explanation should include the following:

	a description of the subject matter of the service to be performed
	the nature of the conflict
	the clients or other parties affected by the conflict
	who you will represent and not represent
	the factors that create the conflict
	the implications of the representation on each of the clients
	the positive aspects to proceeding with the representation
	the things you will do and not do
	the potential, if any, for the interests to diverge in the future
	that the information received by each client cannot be held in confidence against the other
	if a screen mechanism is used explain the intended process and its intended protections of information.

Document the consent to waive in writing

The written consent should take the form of a clearly worded letter and should include the oral disclosure suggested above. This approach leaves little room for argument later about the ambit of disclosure.

The letter should also include the following:

	an acknowledgment by the clients or parties affected that even though the representation may be potentially adverse, they are prepared to proceed with the representation for now;
	an outline of the process to be followed if the interests cannot be represented together in the future. Include whether your representation will continue for at least one of the parties in the future as well as your entitlement to retain fees in the event that one of the clients has to seek alternative representation;
	a statement that the clients have been asked to obtain independent legal advice with respect to the waiver being signed. If obtained, include a copy of the certificate; if not obtained, reference the client's election to proceed without independent legal advice.

Maintain file copies of the consent

Copies of the signed consent to waive should be kept by the person in the firm responsible for monitoring conflicts and in the file.

Last update: Oct. 7, 2002