Waiving Conflicts of Interest

Yale Law Journal

Volumn 108, Issue 2, 1998, Pages 407-438

  Zacharias, Fred C ^a  

^a NONE

Author keywords

[No Author keywords available]

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EID: 0040457786     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797479     Document Type: Article

References (215)

1. Numerous commentators have addressed general issues relating to conflict-of-interest rules, including what constitutes a conflict, what standards of regulation should apply, and whether regulation should focus on particular areas of practice. See, e.g., Robert H. Aronson, Conflict of Interest, 52 WASH. L. REV. 807 (1977) (identifying a range of situations involving conflicts of interests); Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 GEO. J. LEGAL ETHICS 823 (1992) (raising questions about conflict-of-interest regulation and, particularly, about how conflicts should be defined); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interests: The Need for a Coherent Framework, 66 NOTRE DAME L. REV. 1 (1990) (arguing for more context-specific regulation of conflicts of interest). Most of the commentators who have considered when consent to conflicts of interests should be honored have discussed the issue only in passing. See, e.g., McMunigal, supra, at 875-76 (noting unresolved issues under the professional rules regarding who should decide whether the risk of impaired lawyer performance justifies prohibiting concurrent representation); Fred C. Zacharias, Foreword: The Quest for the Perfect Code, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at 6-8, on file with The Yale Law Journal) (mentioning weaknesses in California's regulation of consent in conflict-of-interest cases); cf. Peter R. Jarvis & Bradley F. Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 WILLAMETTE L. REV. 145 (1997) (analyzing which conflicts should be waivable but focusing primarily on the difficulty of crafting a manageable bright-line rule); Nancy L. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) (providing a useful pre-Model Rules analysis of concurrent client regulation).
2. Numerous commentators have addressed general issues relating to conflict-of-interest rules, including what constitutes a conflict, what standards of regulation should apply, and whether regulation should focus on particular areas of practice. See, e.g., Robert H. Aronson, Conflict of Interest, 52 WASH. L. REV. 807 (1977) (identifying a range of situations involving conflicts of interests); Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 GEO. J. LEGAL ETHICS 823 (1992) (raising questions about conflict-of-interest regulation and, particularly, about how conflicts should be defined); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interests: The Need for a Coherent Framework, 66 NOTRE DAME L. REV. 1 (1990) (arguing for more context-specific regulation of conflicts of interest). Most of the commentators who have considered when consent to conflicts of interests should be honored have discussed the issue only in passing. See, e.g., McMunigal, supra, at 875-76 (noting unresolved issues under the professional rules regarding who should decide whether the risk of impaired lawyer performance justifies prohibiting concurrent representation); Fred C. Zacharias, Foreword: The Quest for the Perfect Code, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at 6-8, on file with The Yale Law Journal) (mentioning weaknesses in California's regulation of consent in conflict-of-interest cases); cf. Peter R. Jarvis & Bradley F. Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 WILLAMETTE L. REV. 145 (1997) (analyzing which conflicts should be waivable but focusing primarily on the difficulty of crafting a manageable bright-line rule); Nancy L. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) (providing a useful pre-Model Rules analysis of concurrent client regulation).
3. Numerous commentators have addressed general issues relating to conflict-of-interest rules, including what constitutes a conflict, what standards of regulation should apply, and whether regulation should focus on particular areas of practice. See, e.g., Robert H. Aronson, Conflict of Interest, 52 WASH. L. REV. 807 (1977) (identifying a range of situations involving conflicts of interests); Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 GEO. J. LEGAL ETHICS 823 (1992) (raising questions about conflict-of-interest regulation and, particularly, about how conflicts should be defined); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interests: The Need for a Coherent Framework, 66 NOTRE DAME L. REV. 1 (1990) (arguing for more context-specific regulation of conflicts of interest). Most of the commentators who have considered when consent to conflicts of interests should be honored have discussed the issue only in passing. See, e.g., McMunigal, supra, at 875-76 (noting unresolved issues under the professional rules regarding who should decide whether the risk of impaired lawyer performance justifies prohibiting concurrent representation); Fred C. Zacharias, Foreword: The Quest for the Perfect Code, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at 6-8, on file with The Yale Law Journal) (mentioning weaknesses in California's regulation of consent in conflict-of-interest cases); cf. Peter R. Jarvis & Bradley F. Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 WILLAMETTE L. REV. 145 (1997) (analyzing which conflicts should be waivable but focusing primarily on the difficulty of crafting a manageable bright-line rule); Nancy L. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) (providing a useful pre-Model Rules analysis of concurrent client regulation).
4. Numerous commentators have addressed general issues relating to conflict-of-interest rules, including what constitutes a conflict, what standards of regulation should apply, and whether regulation should focus on particular areas of practice. See, e.g., Robert H. Aronson, Conflict of Interest, 52 WASH. L. REV. 807 (1977) (identifying a range of situations involving conflicts of interests); Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 GEO. J. LEGAL ETHICS 823 (1992) (raising questions about conflict-of-interest regulation and, particularly, about how conflicts should be defined); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interests: The Need for a Coherent Framework, 66 NOTRE DAME L. REV. 1 (1990) (arguing for more context-specific regulation of conflicts of interest). Most of the commentators who have considered when consent to conflicts of interests should be honored have discussed the issue only in passing. See, e.g., McMunigal, supra, at 875-76 (noting unresolved issues under the professional rules regarding who should decide whether the risk of impaired lawyer performance justifies prohibiting concurrent representation); Fred C. Zacharias, Foreword: The Quest for the Perfect Code, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at 6-8, on file with The Yale Law Journal) (mentioning weaknesses in California's regulation of consent in conflict-of-interest cases); cf. Peter R. Jarvis & Bradley F. Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 WILLAMETTE L. REV. 145 (1997) (analyzing which conflicts should be waivable but focusing primarily on the difficulty of crafting a manageable bright-line rule); Nancy L. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) (providing a useful pre-Model Rules analysis of concurrent client regulation).
5. Numerous commentators have addressed general issues relating to conflict-of-interest rules, including what constitutes a conflict, what standards of regulation should apply, and whether regulation should focus on particular areas of practice. See, e.g., Robert H. Aronson, Conflict of Interest, 52 WASH. L. REV. 807 (1977) (identifying a range of situations involving conflicts of interests); Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 GEO. J. LEGAL ETHICS 823 (1992) (raising questions about conflict-of-interest regulation and, particularly, about how conflicts should be defined); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interests: The Need for a Coherent Framework, 66 NOTRE DAME L. REV. 1 (1990) (arguing for more context-specific regulation of conflicts of interest). Most of the commentators who have considered when consent to conflicts of interests should be honored have discussed the issue only in passing. See, e.g., McMunigal, supra, at 875-76 (noting unresolved issues under the professional rules regarding who should decide whether the risk of impaired lawyer performance justifies prohibiting concurrent representation); Fred C. Zacharias, Foreword: The Quest for the Perfect Code, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at 6-8, on file with The Yale Law Journal) (mentioning weaknesses in California's regulation of consent in conflict-of-interest cases); cf. Peter R. Jarvis & Bradley F. Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 WILLAMETTE L. REV. 145 (1997) (analyzing which conflicts should be waivable but focusing primarily on the difficulty of crafting a manageable bright-line rule); Nancy L. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) (providing a useful pre-Model Rules analysis of concurrent client regulation).
6. Numerous commentators have addressed general issues relating to conflict-of-interest rules, including what constitutes a conflict, what standards of regulation should apply, and whether regulation should focus on particular areas of practice. See, e.g., Robert H. Aronson, Conflict of Interest, 52 WASH. L. REV. 807 (1977) (identifying a range of situations involving conflicts of interests); Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 GEO. J. LEGAL ETHICS 823 (1992) (raising questions about conflict-of-interest regulation and, particularly, about how conflicts should be defined); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interests: The Need for a Coherent Framework, 66 NOTRE DAME L. REV. 1 (1990) (arguing for more context-specific regulation of conflicts of interest). Most of the commentators who have considered when consent to conflicts of interests should be honored have discussed the issue only in passing. See, e.g., McMunigal, supra, at 875-76 (noting unresolved issues under the professional rules regarding who should decide whether the risk of impaired lawyer performance justifies prohibiting concurrent representation); Fred C. Zacharias, Foreword: The Quest for the Perfect Code, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at 6-8, on file with The Yale Law Journal) (mentioning weaknesses in California's regulation of consent in conflict-of-interest cases); cf. Peter R. Jarvis & Bradley F. Tellam, When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law, 33 WILLAMETTE L. REV. 145 (1997) (analyzing which conflicts should be waivable but focusing primarily on the difficulty of crafting a manageable bright-line rule); Nancy L. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) (providing a useful pre-Model Rules analysis of concurrent client regulation).
7. Virtually all states except California follow one of the two model ethics codes developed by the American Bar Association (ABA): the MODEL RULES OF PROFESSIONAL CONDUCT (1995) [hereinafter MODEL RULES] (adopted in 1983), and the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1979) [hereinafter MODEL CODE]. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 5 (5th ed. 1998) (discussing state adoptions of the ABA model codes). Observers agree that the Model Rules' formulation of conflict-of-interest regulation is an advance over the less sophisticated Model Code provisions. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 7.1.1, at 314 (1986) (noting that the Model Rules "substantially improve on" the Model Code); cf. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 624 (2d ed. 1994) ("Case law on conflicts issues filled the gaps left by the Canons and the Model Code"); Moore, supra note 1, at 220-29 (illustrating the inadequacies of the Model Code's approach). Accordingly, most American jurisdictions have adopted some form of Model Rule 1.7. See infra notes 3, 17, 18 and sources cited therein.
8. Virtually all states except California follow one of the two model ethics codes developed by the American Bar Association (ABA): the MODEL RULES OF PROFESSIONAL CONDUCT (1995) [hereinafter MODEL RULES] (adopted in 1983), and the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1979) [hereinafter MODEL CODE]. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 5 (5th ed. 1998) (discussing state adoptions of the ABA model codes). Observers agree that the Model Rules' formulation of conflict-of-interest regulation is an advance over the less sophisticated Model Code provisions. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 7.1.1, at 314 (1986) (noting that the Model Rules "substantially improve on" the Model Code); cf. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 624 (2d ed. 1994) ("Case law on conflicts issues filled the gaps left by the Canons and the Model Code"); Moore, supra note 1, at 220-29 (illustrating the inadequacies of the Model Code's approach). Accordingly, most American jurisdictions have adopted some form of Model Rule 1.7. See infra notes 3, 17, 18 and sources cited therein.
9. Virtually all states except California follow one of the two model ethics codes developed by the American Bar Association (ABA): the MODEL RULES OF PROFESSIONAL CONDUCT (1995) [hereinafter MODEL RULES] (adopted in 1983), and the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1979) [hereinafter MODEL CODE]. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 5 (5th ed. 1998) (discussing state adoptions of the ABA model codes). Observers agree that the Model Rules' formulation of conflict-of-interest regulation is an advance over the less sophisticated Model Code provisions. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 7.1.1, at 314 (1986) (noting that the Model Rules "substantially improve on" the Model Code); cf. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 624 (2d ed. 1994) ("Case law on conflicts issues filled the gaps left by the Canons and the Model Code"); Moore, supra note 1, at 220-29 (illustrating the inadequacies of the Model Code's approach). Accordingly, most American jurisdictions have adopted some form of Model Rule 1.7. See infra notes 3, 17, 18 and sources cited therein.
10. Virtually all states except California follow one of the two model ethics codes developed by the American Bar Association (ABA): the MODEL RULES OF PROFESSIONAL CONDUCT (1995) [hereinafter MODEL RULES] (adopted in 1983), and the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1979) [hereinafter MODEL CODE]. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 5 (5th ed. 1998) (discussing state adoptions of the ABA model codes). Observers agree that the Model Rules' formulation of conflict-of-interest regulation is an advance over the less sophisticated Model Code provisions. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 7.1.1, at 314 (1986) (noting that the Model Rules "substantially improve on" the Model Code); cf. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 624 (2d ed. 1994) ("Case law on conflicts issues filled the gaps left by the Canons and the Model Code"); Moore, supra note 1, at 220-29 (illustrating the inadequacies of the Model Code's approach). Accordingly, most American jurisdictions have adopted some form of Model Rule 1.7. See infra notes 3, 17, 18 and sources cited therein.
11. Virtually all states except California follow one of the two model ethics codes developed by the American Bar Association (ABA): the MODEL RULES OF PROFESSIONAL CONDUCT (1995) [hereinafter MODEL RULES] (adopted in 1983), and the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1979) [hereinafter MODEL CODE]. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 5 (5th ed. 1998) (discussing state adoptions of the ABA model codes). Observers agree that the Model Rules' formulation of conflict-of-interest regulation is an advance over the less sophisticated Model Code provisions. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 7.1.1, at 314 (1986) (noting that the Model Rules "substantially improve on" the Model Code); cf. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 624 (2d ed. 1994) ("Case law on conflicts issues filled the gaps left by the Canons and the Model Code"); Moore, supra note 1, at 220-29 (illustrating the inadequacies of the Model Code's approach). Accordingly, most American jurisdictions have adopted some form of Model Rule 1.7. See infra notes 3, 17, 18 and sources cited therein.
12. Virtually all states except California follow one of the two model ethics codes developed by the American Bar Association (ABA): the MODEL RULES OF PROFESSIONAL CONDUCT (1995) [hereinafter MODEL RULES] (adopted in 1983), and the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1979) [hereinafter MODEL CODE]. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 5 (5th ed. 1998) (discussing state adoptions of the ABA model codes). Observers agree that the Model Rules' formulation of conflict-of-interest regulation is an advance over the less sophisticated Model Code provisions. See, e.g., CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 7.1.1, at 314 (1986) (noting that the Model Rules "substantially improve on" the Model Code); cf. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 624 (2d ed. 1994) ("Case law on conflicts issues filled the gaps left by the Canons and the Model Code"); Moore, supra note 1, at 220-29 (illustrating the inadequacies of the Model Code's approach). Accordingly, most American jurisdictions have adopted some form of Model Rule 1.7. See infra notes 3, 17, 18 and sources cited therein.
13. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
14. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
15. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
16. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
17. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
18. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
19. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
20. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
21. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
22. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
23. See MODEL RULES, supra note 2, Rule 1.7(a), (b). The Model Code, in a similar but more opaque fashion, recognizes the right of clients to consent to conflicted representation, but only when "it is obvious that the lawyer can adequately represent the interests of each . . . ." MODEL CODE, supra note 2, DR 5-105(C). Only four jurisdictions currently follow DR 5-105. See COLO. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); NEB. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996); TENN. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1997); VT. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1992). Several others adopted provisions based on DR 5-105 but amended them (sometimes to bring them more in line with the Model Rules). See, e.g., GA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1996) (eliminating small portions of the rule); IOWA CODE OF PROFESSIONAL RESPONSIBILITY FOR LAWYERS DR 5-105 (1994) (eliminating a small portion of the rule and adding a special provision for matrimonial cases); MASS. CANONS OF ETHICS AND DISCIPLINARY RULES DR 5-105 (1996) (adding a provision for "public counsel"); N.Y. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding an imputed disqualification provision); OHIO CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1995) (eliminating portions of the rule); VA. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105 (1994) (adding a successive representation provision).
24. This Essay does not focus on the broader question of what level of information clients must receive to be capable of giving informed consent. A few commentators have analyzed this issue in the conflicts realm and elsewhere. See, e.g., Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980) (discussing the level of information clients should be required to have before being allowed to authorize acts by lawyers); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) (arguing for an approach to legal "informed" client consent similar to that prevailing in the medical profession); Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987) (same).
25. This Essay does not focus on the broader question of what level of information clients must receive to be capable of giving informed consent. A few commentators have analyzed this issue in the conflicts realm and elsewhere. See, e.g., Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980) (discussing the level of information clients should be required to have before being allowed to authorize acts by lawyers); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) (arguing for an approach to legal "informed" client consent similar to that prevailing in the medical profession); Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987) (same).
26. This Essay does not focus on the broader question of what level of information clients must receive to be capable of giving informed consent. A few commentators have analyzed this issue in the conflicts realm and elsewhere. See, e.g., Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980) (discussing the level of information clients should be required to have before being allowed to authorize acts by lawyers); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) (arguing for an approach to legal "informed" client consent similar to that prevailing in the medical profession); Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987) (same).
27. CAL. RULES OF PROFESSIONAL CONDUCT Rule 3-310(C) (1992) [hereinafter CAL. RULES].
28. Compare id. Rule 3-310, with MODEL CODE, supra note 2, EC 5-1 to 5-3, DR 5-105, and MODEL RULES, supra note 2, Rules 1.7 to 1.9. To avoid repetition, this Essay will refer primarily to the Model Rules conflict provisions.
29. This Essay treats the lawyer with a potential conflict as female. For balance, I treat the other actors in the process (e.g., clients and opposing counsel) as male.
30. Compare CAL. RULES, supra note 5, Rule 3-310, with MODEL RULES, supra note 2, Rule 1.7(a)(2) (authorizing lawyers to accept client consent only when the lawyers reasonably believe that the representation will not be adversely affected). California's general approach to legal ethics has long been considered idiosyncratic. Most states' rules of professional conduct mirror or adapt the ABA's two model ethics codes. See GILLERS, supra note 2, at 5. California has gone its own way in many important areas of professional regulation other than conflicts of interest. See. e.g., Howard v. Babcock, 863 P.2d 150 (Cal. 1993) (approving, for the first time, noncompetition covenants in law firm partnership agreements); STEPHEN GILLERS & ROY D. SIMON, JR., REGULATION OF LAWYERS: STATUTES AND STANDARDS at xiii (1996 ed.) (noting that California was the last jurisdiction to adopt a rule governing lawyers' statements to the press); Roderick W. Leonard, The New California Rules of Professional Conduct: What They Mean, 11 GLENDALE L. REV. 1 (1992) (analyzing California's 1989 reformulation of its professional rules provision by provision); Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. DAVIS L. REV. 367 (1994) (discussing California's unique approach to attorney-client confidentiality).
31. Compare CAL. RULES, supra note 5, Rule 3-310, with MODEL RULES, supra note 2, Rule 1.7(a)(2) (authorizing lawyers to accept client consent only when the lawyers reasonably believe that the representation will not be adversely affected). California's general approach to legal ethics has long been considered idiosyncratic. Most states' rules of professional conduct mirror or adapt the ABA's two model ethics codes. See GILLERS, supra note 2, at 5. California has gone its own way in many important areas of professional regulation other than conflicts of interest. See. e.g., Howard v. Babcock, 863 P.2d 150 (Cal. 1993) (approving, for the first time, noncompetition covenants in law firm partnership agreements); STEPHEN GILLERS & ROY D. SIMON, JR., REGULATION OF LAWYERS: STATUTES AND STANDARDS at xiii (1996 ed.) (noting that California was the last jurisdiction to adopt a rule governing lawyers' statements to the press); Roderick W. Leonard, The New California Rules of Professional Conduct: What They Mean, 11 GLENDALE L. REV. 1 (1992) (analyzing California's 1989 reformulation of its professional rules provision by provision); Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. DAVIS L. REV. 367 (1994) (discussing California's unique approach to attorney-client confidentiality).
32. Compare CAL. RULES, supra note 5, Rule 3-310, with MODEL RULES, supra note 2, Rule 1.7(a)(2) (authorizing lawyers to accept client consent only when the lawyers reasonably believe that the representation will not be adversely affected). California's general approach to legal ethics has long been considered idiosyncratic. Most states' rules of professional conduct mirror or adapt the ABA's two model ethics codes. See GILLERS, supra note 2, at 5. California has gone its own way in many important areas of professional regulation other than conflicts of interest. See. e.g., Howard v. Babcock, 863 P.2d 150 (Cal. 1993) (approving, for the first time, noncompetition covenants in law firm partnership agreements); STEPHEN GILLERS & ROY D. SIMON, JR., REGULATION OF LAWYERS: STATUTES AND STANDARDS at xiii (1996 ed.) (noting that California was the last jurisdiction to adopt a rule governing lawyers' statements to the press); Roderick W. Leonard, The New California Rules of Professional Conduct: What They Mean, 11 GLENDALE L. REV. 1 (1992) (analyzing California's 1989 reformulation of its professional rules provision by provision); Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. DAVIS L. REV. 367 (1994) (discussing California's unique approach to attorney-client confidentiality).
33. Compare CAL. RULES, supra note 5, Rule 3-310, with MODEL RULES, supra note 2, Rule 1.7(a)(2) (authorizing lawyers to accept client consent only when the lawyers reasonably believe that the representation will not be adversely affected). California's general approach to legal ethics has long been considered idiosyncratic. Most states' rules of professional conduct mirror or adapt the ABA's two model ethics codes. See GILLERS, supra note 2, at 5. California has gone its own way in many important areas of professional regulation other than conflicts of interest. See. e.g., Howard v. Babcock, 863 P.2d 150 (Cal. 1993) (approving, for the first time, noncompetition covenants in law firm partnership agreements); STEPHEN GILLERS & ROY D. SIMON, JR., REGULATION OF LAWYERS: STATUTES AND STANDARDS at xiii (1996 ed.) (noting that California was the last jurisdiction to adopt a rule governing lawyers' statements to the press); Roderick W. Leonard, The New California Rules of Professional Conduct: What They Mean, 11 GLENDALE L. REV. 1 (1992) (analyzing California's 1989 reformulation of its professional rules provision by provision); Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. DAVIS L. REV. 367 (1994) (discussing California's unique approach to attorney-client confidentiality).
34. See Klemm v. Superior Court, 142 Cal. Rptr. 509, 512 (Ct. App. 1977) (stating in dicta that actual conflicts at trial or hearing are nonwaivable); see also Tsakos Shipping & Trading v. Juniper Garden Town Homes, Ltd., 15 Cal. Rptr. 2d 585, 598 (Ct. App. 1993) (citing Klemm's dicta with approval); People v. Sanford, 219 Cal. Rptr. 726, 729-30 (Ct. App. 1985) applying Klemm but holding view that disqualification in actual concurrent conflict cases is usually "automatic"); L.A. County Bar Ass'n, Formal Op. 471 (1994) (suggesting that a client may not agree to representation in which it is unlikely that the lawyer can represent the client competently). 10. This scenario was addressed in a series of cases culminating in Wheat v. United States, 486 U.S. 153 (1988). In these cases, the government typically challenged the joint representation on the alternative grounds that it was unfair to one of the defendants, that it was prejudicial to the ability of the government to obtain convictions through pleas or grand jury testimony, and that it was prejudicial to the fair administration of justice. See sources cited infra note 69.
35. See. e.g., In re Dolan, 384 A.2d 1076, 1078 (N.J. 1978).
36. MODEL RULES, supra note 2, Rule 1.7(a).
37. Id. Rule 1.7(b).
38. CAL. RULES, supra note 5, Rule 3-310(C).
39. The ABA attitude toward representation of successive clients defers more to client decisionmaking and thus merges with Califorma's approach. The Model Rules assume that former clients have a lesser right to demand the loyalty of a former attorney. See MODEL RULES, supra note 2, Rule 1.9 cmt. Although there are situations in which a lawyer may not act adversely to the interests of a former client, the former client's right to consent to such representation is absolute. See id. Rule 1.9(a), (b). This rule parallels the California Code's comprehensive conclusion that any conflict of interest can be approved through "the informed written consent of the client or former client." CAL. RULES, supra note 5, Rule 3-310(E).
40. MODEL RULES, supra note 2, Rule 1.7(a)(1).
41. Id. Rule 1.7(b)(1). The following jurisdictions have adopted provisions identical to Model Rule 1.7: ALA. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997); ARIZ. CODE OF PROFESSIONAL CONDUCT Rule 1.7 (1995); ARK. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997); CONN. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1995); DEL. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997); HAW. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994); IDAHO RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1996); IND. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1996); KAN. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994); KY. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1996); MICH. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1993); MINN. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997); MO. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997); MONT. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994); OKLA. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994); PA RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1993); R.I. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1996); S.C. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997); S.D. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994); and W. VA. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994). Several others have adopted the essence of Rule 1.7 but have made minor modifications. See, e.g., RULES REGULATING THE FLA. BAR Rule 4-1.7 (1994) (amending Rule 1.7(a)(1) slightly and adding a provision relating to familial representation); ILL. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1995) (requiring "disclosure" instead of "consultation"); LA. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1995) (adding a "loyalty" provision); MD. LAWYERS' RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1994) (expanding the disclosure requirement); MISS. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1995) (expanding the consent requirement); NEV. RULES OF PROFESSIONAL CONDUCT Rule 157 (1993) (adding a suggestion of written disclosure); N.H. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1995) (expanding the consent requirement); N.J. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997) (adding a disclosure requirement and forbidding consent by a public entity); N.M. RULES OF PROFESSIONAL CONDUCT Rule 16-107 (1997) (expanding the consultation requirement); N.C. RULES OF PROFESSIONAL CONDUCT Rule 5.1 (1997) (expanding the disclosure requirement and adding provisions regarding continuing obligation to evaluate conflicts and subsequent representation); N.D. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1997) (rewording Rule 1.7 and adding a confidentiality provision); UTAH RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1993) (adding a provision forbidding the representation of adverse parties in separate matters); WASH. RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1996) (expanding the consultation and disclosure requirements and adding a provision for representatives of governmental entities); WIS. RULES OF PROFESSIONAL CONDUCT SCR 20:1.7 (1993) (adding a written-consent requirement).
42. CAL. RULES, supra note 5, Rule 3-310(C). The California rule mirrors a proposal made by the American Trial Lawyers' Association (ATLA) as an alternative to the Model Rules. The ATLA provision stated: "A lawyer may serve one or more clients, despite a divided loyalty, if each client who is or may be adversely affected by the divided loyalty is fully informed of the actual or potential adverse effects, and voluntarily consents." Moore, supra note 1, at 215 n.19 (quoting the ATLA proposal).
43. Oregon's approach is championed in Jarvis & Tellam, supra note 1. As discussed above, Jarvis and Tellam argue that joint representation rarely can be justified, even in instances when the clients conclude that they would benefit from the representation. See id. at 175. Jarvis and Tellam also suggest that the District of Columbia's recent amendments to its conflict rule produce a provision virtually identical to Oregon's. See id. at 172. The District's rule, however, may honor client consent in some actual conflict-of-interest situations, in contrast to Oregon's absolute prohibition. See D.C. RULES OF PROFESSIONAL CONDUCT Rule 1.7(b)(1) (1996) [hereinafter D.C. RULES] (referring to the consent provisions of Rule 1.7). For other jurisdictions that have adopted provisions diverging substantially from both the Model Rules and Model Code, see ME. CODE OF PROFESSIONAL RESPONSIBILITY Rule 3.4 (1992), which combines Model Rule 1.7 and Model Code DR 5-105, and TEX. DISCIPLINARY RULES OF PROFESSIONAL CONDUCT Rules 1.06 to 1.07 (1997), which abbreviates Model Rule 1.7 and adds a caveat that cases involving adversaries are nonwaivable. Cf. P.R. CANONS OF PROFESSIONAL ETHICS Canon 21 (1994) (adopting a general anticonflict rule emphasizing loyalty and forbidding a lawyer from representing conflicting interests when "it is his duty to contend for that which duty to another client requires him to oppos").
44. OR. CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105(A) (1992) [hereinafter OR. CODE]; accord D.C. RULES, supra note 19, Rule 1.7 (b)(1).
45. OR CODE, supra note 20, DR 5-105(A)(1).
46. The Oregon Code provides, in pertinent part: "Except as provided in DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such representation would result in an actual or likely conflict." Id. DR 5-105(E). The Oregon rule is absolute in this regard. The District of Columbia rule seems to allow some wiggle room for consent in certain actual conflict cases. See D.C. RULES, supra note 19, Rule 1.7(c).
47. OR CODE, supra note 20, DR 5-105(E).
48. The Oregon Code states that "[a] lawyer may represent multiple current clients in instances otherwise prohibited by DR 5-105(E) when such representation would not result in an actual conflict and when each client consents to the multiple representation after full disclosure." Id. DR 5-105(F).
49. See, e.g., Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339, 1350 (9th Cir. 1981) (citing the client's right to make risky choices); Zador Corp. v. Kwan, 37 Cal. Rptr. 2d 754, 759 (Ct. App 1995) (relying on an autonomy rationale); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 202 cmt. g(iv), reporter's note (Proposed Final Draft No. 1, 1996) [hereinafter RESTATEMENT] ("The preferred position, taken in the Comment, is that in most circumstances concern for client autonomy warrants respecting a client's informed consent."); WOLFRAM, supra note 2, § 7.2.2 ("Giving effect to a client's consent to a conflicting representation must rest either on the ground of contract freedom or on the related ground of personal autonomy . . . ."); Strauss, supra note 4, at 336-39 (arguing for an informed consent model that heightens the emphasis on client autonomy in the lawyer-client relationship).
50. Similar issues hound the notion of autonomy in the medical context, See, e.g., CARL E. SCHNEIDER, THE PRACTICE OF AUTONOMY: PATIENTS, DOCTORS, AND MEDICAL DECISIONS (forthcoming 1998) (manuscript at 39-52, on file with The Yale Law Journal) (describing various possible "models of autonomy" in the context of medical practice).
51. The Restatement was formally approved in May, 1998, subject to the Reporter's final editing and revision. The most recent published draft addressing conflicts of interest was circulated in March, 1996. See RESTATEMENT, supra note 25. Except where otherwise specified, this Essay will therefore cite to the 1996 version, with apologies to the drafters if the final version should include changes of which the author is presently unaware.
52. RESTATEMENT, supra note 25, § 202 cmt. g(iv).
53. See David Luban, Paternalism and the Legal Profession, 1981 WIS. L. REV. 454, 467, 472 (analyzing the argument that lawyers sometimes have better senses than the clients themselves of what is good for the clients and noting that "what is good according to a person's own values" may not be the same thing as "what is in the person's best interest"); Moore, supra note 1, at 236-37, 237 n.128 (relating theories of paternalism to conflicts-of-interest regulation); Strauss, supra note 4, at 321-22 (discussing the justifications for paternalistic behavior by lawyers).
54. Contrast this with the way professional code drafters traditionally have treated autonomy in the context of attorney-client confidentiality. Here, the drafters refer to autonomy in its starkest sense, as a right that has value independent of the results to which it leads. Proponents of strict confidentiality rules argue that there is a societal benefit simply in letting clients make choices and decisions within the legal system. See, e.g., Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 617 ("[I]ncreasing individual autonomy is morally good."). Attorney-client confidentiality arguably is necessary to enable clients to obtain the information that enables them to exercise their ability to choose. See, e.g., MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 4, 27-41 (1975) (discussing the importance of confidentiality in enabling a client to give his lawyer information so that the client can present an effective case with his lawyer's assistance); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 6-10, 14-17, 43-64 (1990) (discussing the importance of client autonomy in defining the lawyer's role). The existence of confidentiality does not turn on whether the decisions it allows clients to make are wise.
55. Contrast this with the way professional code drafters traditionally have treated autonomy in the context of attorney-client confidentiality. Here, the drafters refer to autonomy in its starkest sense, as a right that has value independent of the results to which it leads. Proponents of strict confidentiality rules argue that there is a societal benefit simply in letting clients make choices and decisions within the legal system. See, e.g., Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 617 ("[I]ncreasing individual autonomy is morally good."). Attorney-client confidentiality arguably is necessary to enable clients to obtain the information that enables them to exercise their ability to choose. See, e.g., MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 4, 27-41 (1975) (discussing the importance of confidentiality in enabling a client to give his lawyer information so that the client can present an effective case with his lawyer's assistance); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 6-10, 14-17, 43-64 (1990) (discussing the importance of client autonomy in defining the lawyer's role). The existence of confidentiality does not turn on whether the decisions it allows clients to make are wise.
56. Contrast this with the way professional code drafters traditionally have treated autonomy in the context of attorney-client confidentiality. Here, the drafters refer to autonomy in its starkest sense, as a right that has value independent of the results to which it leads. Proponents of strict confidentiality rules argue that there is a societal benefit simply in letting clients make choices and decisions within the legal system. See, e.g., Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 617 ("[I]ncreasing individual autonomy is morally good."). Attorney-client confidentiality arguably is necessary to enable clients to obtain the information that enables them to exercise their ability to choose. See, e.g., MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 4, 27-41 (1975) (discussing the importance of confidentiality in enabling a client to give his lawyer information so that the client can present an effective case with his lawyer's assistance); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 6-10, 14-17, 43-64 (1990) (discussing the importance of client autonomy in defining the lawyer's role). The existence of confidentiality does not turn on whether the decisions it allows clients to make are wise.
57. See, e.g., SCHNEIDER, supra note 26, at 40-52 (discussing the mandatory autonomy model and citing authorities); Monroe H. Freedman, Personal Responsibility in a Professional System, 27 CATH. U. L. REV. 191, 204 (1978) (arguing for the inherent importance of client autonomy); Pepper, supra note 30, at 616-18 (discussing the inherent value of autonomy); Strauss, supra note 4, at 336 ("[C]lient decisionmaking is an inherent good because it recognizes individual dignity and personhood, and the right of self-determination."); cf. DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 34 (1993) (arguing that deferring decisionmaking power to doctors can conflict impermissibly with patient self-determiantion).
58. See, e.g., SCHNEIDER, supra note 26, at 40-52 (discussing the mandatory autonomy model and citing authorities); Monroe H. Freedman, Personal Responsibility in a Professional System, 27 CATH. U. L. REV. 191, 204 (1978) (arguing for the inherent importance of client autonomy); Pepper, supra note 30, at 616-18 (discussing the inherent value of autonomy); Strauss, supra note 4, at 336 ("[C]lient decisionmaking is an inherent good because it recognizes individual dignity and personhood, and the right of self-determination."); cf. DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 34 (1993) (arguing that deferring decisionmaking power to doctors can conflict impermissibly with patient self-determiantion).
59. California's confidentiality rule is found in CAL. BUS. & PROF. CODE § 6068(e) (West 1990 & Supp. 1998). The Code provides, in pertinent part, that "it is the duty of an attorney . . .[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Id. Although there is some argument that this absolute provision is subject to common-sense exceptions, at least one local bar association has issued an opinion holding that the risk of death to a third party does not justify breaching confidentiality. See San Diego County Bar Ass'n Legal Ethics & Unlawful Pracs. Comm., Op. 1990-1, at 3 (1990); see also Roger C. Cramton, Proposed Legislation Concerning a Lawyer's Duty of Confidentiality, 22 PEPP. L. REV. 1467, 1468 (1995) (noting that some California decisions have recognized the existence of implied confidentiality exceptions); Zacharias, supra note 8, at 369 n.3, 371 n.14 (citing authorities supporting and questioning the absoluteness of California's confidentiality rule).
60. California's confidentiality rule is found in CAL. BUS. & PROF. CODE § 6068(e) (West 1990 & Supp. 1998). The Code provides, in pertinent part, that "it is the duty of an attorney . . .[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Id. Although there is some argument that this absolute provision is subject to common-sense exceptions, at least one local bar association has issued an opinion holding that the risk of death to a third party does not justify breaching confidentiality. See San Diego County Bar Ass'n Legal Ethics & Unlawful Pracs. Comm., Op. 1990-1, at 3 (1990); see also Roger C. Cramton, Proposed Legislation Concerning a Lawyer's Duty of Confidentiality, 22 PEPP. L. REV. 1467, 1468 (1995) (noting that some California decisions have recognized the existence of implied confidentiality exceptions); Zacharias, supra note 8, at 369 n.3, 371 n.14 (citing authorities supporting and questioning the absoluteness of California's confidentiality rule).
61. California's confidentiality rule is found in CAL. BUS. & PROF. CODE § 6068(e) (West 1990 & Supp. 1998). The Code provides, in pertinent part, that "it is the duty of an attorney . . .[t]o maintain inviolate the
62. It is in part for this reason that Peter Jarvis and Bradley Tellam support the Oregon approach, which forbids consent to any representation involving an actual conflict of interest. See Jarvis & Tellam, supra note 1.
63. Of course, to some degree virtually every representation is burdened by personal interests on the part of the lawyer, including the desire to collect fees, to impress clients and onlookers, and to enjoy the job.
64. See, e.g., Kaiser v. Stewart, No. CIV.A.96-6643, 1997 WL 186329, at *4 (E.D. Pa. Apr. 10, 1997) (holding that, in a complicated multidefendant lawsuit, "[i]t is not for the court to second guess decis ons of the various defendants . . . [or] to compel a party to engage separate counsel [they] may not be able to afford");
65. Teresa Stanton Collett, The Promise and Peril of Multiple Representation, 16 REV. LITIG. 567, 574-78 (1997) (cataloguing some benefits of multiple representation);
66. Richard A. Epstein, The Legal Regulation of Lawyers' Conflict of Interest, 60 FORDHAM L. REV. 579, 592 (1992) (describing some of the savings that may be inherent in concurrent representation).
67. See, e.g., Aronson, supra note 1, at 822-33 (cataloguing instances in which multiple clients with potentially of actually conflicting interests might prefer joint representation in order to save on costs, including insurers-insureds, buyer-sellers, borrowers-lenders, husbands-wives, and joint plaintiffs or defendants); see also Conrad Chevrolet v. Rood, 862 S.W.2d 312, 315 (Ky. 1993) (Spain, J., dissenting) (arguing that a waiver of a conflict in reducing the parties' negotiations to writing should be permissible).
68. See Halvorsen v. Halvorsen, 479 P.2d 161 (Wash. Ct. App. 1970) (holding that concurrent representation of husband and wife is proper as long as no actual conflict of interest exists); see also Moore, supra note 1, at 245-58 (discussing the history and wisdom of permitting joint representation of spouses seeking a divorce); cf. Or. St. Bar Legal Ethics Comm., Formal Op. 86 (1991) (holding that joint representation of divorcing spouses is usually improper).
69. See Halvorsen v. Halvorsen, 479 P.2d 161 (Wash. Ct. App. 1970) (holding that concurrent representation of husband and wife is proper as long as no actual conflict of interest exists); see also Moore, supra note 1, at 245-58 (discussing the history and wisdom of permitting joint representation of spouses seeking a divorce); cf. Or. St. Bar Legal Ethics Comm., Formal Op. 86 (1991) (holding that joint representation of divorcing spouses is usually improper).
70. See Halvorsen v. Halvorsen, 479 P.2d 161 (Wash. Ct. App. 1970) (holding that concurrent representation of husband and wife is proper as long as no actual conflict of interest exists); see also Moore, supra note 1, at 245-58 (discussing the history and wisdom of permitting joint representation of spouses seeking a divorce); cf. Or. St. Bar Legal Ethics Comm., Formal Op. 86 (1991) (holding that joint representation of divorcing spouses is usually improper).
71. See, e.g., Fisons Corp. v. Atochem N. Am., Inc., No. 90 Civ. 1080, 1990 WL 180551, at *5 (S.D.N.Y. Nov. 14, 1990) (approving a client's consent to representation by a lawyer with a conflict because, in the client's judgment, "it was far more important that it obtain the benefit of [the law firm's] familiarity with the ongoing trademark dispute than it was to avoid facing any adverse consequences due to its attorney's conflict of interest").
72. In some situations, multiple representation may afford the client actual tactical advantages, including the ability to present joint claims or to stonewall an attack. See, e.g., Glasser v. United States, 315 U.S. 60, 92 (1942) (Frankfurter, J., dissenting) ("A common defense often gives strength against a common attack."); see also sources cited infra note 69 (discussing several examples of ways in which a lawyer can orchestrate stonewalling by common clients).
73. See, e.g., Karen A. Covy, Note, The Right to Counsel of One's Choice: Joint Representation of Criminal Defendants, 58 NOTRE DAME L. REV. 793, 801-02 (1983) (discussing a criminal client's limited right to counsel of his choice and the importance of trust in choosing an attorney).
74. See, e.g., State v. Vanover, 559 N.W.2d 618, 634 (Iowa 1997) (noting that, for purposes of disqualification, "a long-standing professional relationship could conceivably create a situation where an attorney has an extraordinary and irreplaceable familiarity with the affairs of his client" (citing MacArthur v. Bank of New York, 524 F. Supp. 1205, 1211 (S.D.N.Y. 1981))); Note, The Advocate-Witness Rule: If Z, then X. But Why?, 52 N.Y.U. L. REV. 1365, 1398 (1977) (noting that a "client's confidence and trust in his chosen counsel is an interest worthy of protection," discussing the case law, and arguing for a more relaxed professional rule that would give more weight to the client's desires); cf. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 168 cmt. h, reporter's note (Tentative Draft No. 8, 1997) ("Courts normally are reluctant to accept the challenged lawyer's own assertion of a unique psychological or other need on the part of the client for the lawyer's services."). In California, courts currently do not need to resort to this rationale because the California professional rule governing lawyers who may be witnesses gives clients an absolute right to consent to the continued representation. See CAL. RULES, supra note 5, Rule 5-210 ("A member shall not act as an advocate before a jury which will hear testimony from the member unless . . . [t]he member has the informed, written consent of the client.").
75. See, e.g., State v. Vanover, 559 N.W.2d 618, 634 (Iowa 1997) (noting that, for purposes of disqualification, "a long-standing professional relationship could conceivably create a situation where an attorney has an extraordinary and irreplaceable familiarity with the affairs of his client" (citing MacArthur v. Bank of New York, 524 F. Supp. 1205, 1211 (S.D.N.Y. 1981))); Note, The Advocate-Witness Rule: If Z, then X. But Why?, 52 N.Y.U. L. REV. 1365, 1398 (1977) (noting that a "client's confidence and trust in his chosen counsel is an interest worthy of protection," discussing the case law, and arguing for a more relaxed professional rule that would give more weight to the client's desires); cf. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 168 cmt. h, reporter's note (Tentative Draft No. 8, 1997) ("Courts normally are reluctant to accept the challenged lawyer's own assertion of a unique psychological or other need on the part of the client for the lawyer's services."). In California, courts currently do not need to resort to this rationale because the California professional rule governing lawyers who may be witnesses gives clients an absolute right to consent to the continued representation. See CAL. RULES, supra note 5, Rule 5-210 ("A member shall not act as an advocate before a jury which will hear testimony from the member unless . . . [t]he member has the informed, written consent of the client.").
76. See, e.g., State v. Vanover, 559 N.W.2d 618, 634 (Iowa 1997) (noting that, for purposes of disqualification, "a long-standing professional relationship could conceivably create a situation where an attorney has an extraordinary and irreplaceable familiarity with the affairs of his client" (citing MacArthur v. Bank of New York, 524 F. Supp. 1205, 1211 (S.D.N.Y. 1981))); Note, The Advocate-Witness Rule: If Z, then X. But Why?, 52 N.Y.U. L. REV. 1365, 1398 (1977) (noting that a "client's confidence and trust in his chosen counsel is an interest worthy of protection," discussing the case law, and arguing for a more relaxed professional rule that would give more weight to the client's desires); cf. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 168 cmt. h, reporter's note (Tentative Draft No. 8, 1997) ("Courts normally are reluctant to accept the challenged lawyer's own assertion of a unique psychological or other need on the part of the client for the lawyer's services."). In California, courts currently do not need to resort to this rationale because the California professional rule governing lawyers who may be witnesses gives clients an absolute right to consent to the continued representation. See CAL. RULES, supra note 5, Rule 5-210 ("A member shall not act as an advocate before a jury which will hear testimony from the member unless . . . [t]he member has the informed, written consent of the client.").
77. Cf. Jarvis & Tellam, supra note 1, at 175-76 (asserting that the costs of disallowing joint representation in small cases involving a conflict are not significant). As suggested in the text, the same considerations may apply even in larger jurisdictions, in situations in which only a few good lawyers practice a particular speciality. A client may prefer to hire one of those lawyers despite a conflict of interest rather than seek less qualified representation or representation from a different jurisdiction. Cf. Note, Prospective Waiver of the Right to Disqualify Counsel for Conflicts of Interest, 79 MICH. L. REV. 1074, 1075 & n.6 (1981) (recognizing that a specialized firm might be unwilling to represent small or one-time clients if that representation would foreclose the potential for representing clients in more lucrative matters down the road).
78. Richard Epstein explains this approach in a more sophisticated way. He suggests that conflict-of-interest rules are designed to set a default position, or baseline designed to limit agency costs in bargaining between lawyers and clients. Whenever a client entrusts information to a lawyer, the client risks the possibility that the lawyer will use the information to his disadvantage; for example, in ubsequent representation adverse to the client. Part of the fee clients pay includes protections aga nst such conduct, including confidentiality and conflict rules that help prevent the conduct. See Epstein, supra note 35, at 580-83. In Epstein's view, these protections should be subject to bargaining. The right to bargain is validated by the presence of consent and waiver provisions in the rules. See id. at 590; see also Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 FORDHAM L. REV 71, 71-72 (1996) (characterizing conflict rules as rules of "risk avoidance" that allocate the risk that a lawyer's representation of one client will injure another).
79. Richard Epstein explains this approach in a more sophisticated way. He suggests that conflict-of-interest rules are designed to set a default position, or baseline designed to limit agency costs in bargaining between lawyers and clients. Whenever a client entrusts information to a lawyer, the client risks the possibility that the lawyer will use the information to his disadvantage; for example, in ubsequent representation adverse to the client. Part of the fee clients pay includes protections aga nst such conduct, including confidentiality and conflict rules that help prevent the conduct. See Epstein, supra note 35, at 580-83. In Epstein's view, these protections should be subject to bargaining. The right to bargain is validated by the presence of consent and waiver provisions in the rules. See id. at 590; see also Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 FORDHAM L. REV 71, 71-72 (1996) (characterizing conflict rules as rules of "risk avoidance" that allocate the risk that a lawyer's representation of one client will injure another).
80. Each of these actors may be a decisionmaker on the issue of waiver. The lawyer must make a judgment in the first instance of whether to accept or continue with the representation. A disciplinary agency may need to rule on the subject before the fact, in the context of an advisory opinion or, after the fact in response to a specific complaint of improper concurrent representation. A court may need to rule on the waiver in assessing a motion to disqualify the conflicted lawyer, in making an independent judgment on whether the representation in a matter before the court is appropriate, or in deciding a subsequent malpractice action or fee dispute.
81. See, e.g., State v. Johnson, 823 P.2d 484, 490-91 (Utah 1991) (holding that a criminal defendant was inadequately informed and so could not have effectively consented to conflicted representation); see also Baglini v. Pullman, Inc., 412 F. Supp. 1060, 1065-66 (E.D. Pa.) (holding that a client's consent was sufficiently informed), aff'd sub nom. Fraboni v. Pullman, 547 F.2d 1160 (3d Cir. 1976); Griva v. Davison, 637 A.2d 830, 844-46 (D.C. 1994) (holding that an individual partner of a client company was inadequately informed with respect to joint representation by a law firm of the partnership and another partner).
82. See, e.g., Image Technical Servs. v. Eastman Kodak, 820 F. Supp. 1212, 1216-18 (N.D. Cal. 1993) (rejecting uninformed consent even though the client was a sophisticated corporate entity).
83. See, e.g., Kelly v. Greason, 244 N.E.2d 456, 462 (N.Y. 1968) ("[T]he unsophisticated client may not be . . . able to understand the ramifications of the conflict, however much explained to him."); In re Boivin, 533 P.2d 171, 174-75 (Or. 1975) (noting that in some situations clients cannot understand a lawyer's disclosure and therefore cannot consent); cf. Strauss, supra note 4, at 344-46 (discussing a theory of paternalism that would allow lawyers to override client consent when clients are incapable of understanding the complexities of the decision to be made). Jarvis and Tellam discuss a fairly recent New Jersey opinion that seems to follow this approach. See Jarvis & Tellam, supra note 1, at 157. In Baldasarre v. Butler, 625 A.2d 458, 467 (N.J. 1993), the court held that in complex commercial real estate transactions the potential for conflict was too great to allow even informed participants to consent to joint representation. Although the court did not explain its decision, the emphasis on the complexity of such transactions is explicable only if the court viewed these transactions as so complicated that clients could not understand the lawyer's explanation of conflict issues.
84. Thus, for example, the incentives for the lawyer to encourage joint representation may be so overpowering that a court could conclude that the lawyer cannot provide the requisite information. See infra text accompanying notes 77-80 (discussing lawyers' personal incentives in obtaining client consent).
85. This approach, in general, raises a host of issues associated with lawyer paternalism. See generally Luban, supra note 29, at 487-93 (discussing whether and when paternalistic decisionmaking is appropriate for lawyers).
86. In analyzing the professional conflict-of-interest rules, Kevin McMunigal seems to accept the ABA's premise that the "actual impairment" or "risk of impairment" of the lawyer's performance justifies forbidding concurrent representation and that this is the only potentially viable reason for overriding client consent. McMunigal, supra note 1, at 833-34. McMunigal does note that an issue exists regarding "who decides" what is "the proper balance of authority and responsibility between buyer and client." Id. at 871. Again, however, the sole factor he seems to consider relevant to that issue is who can best assess the risk of impairment. See id. at 871-75.
87. MODEL RULES, supra note 2, Rule 1.7(b)(1).
88. Similarly, representing differently situated parties in the same litigation is typically found to be improper. See, e.g., Kelley's Case, 627 A.2d 597, 599-600 (N.H. 1993) (holding that one client's indemnification of the other for potential damages arising out of the joint representation is insufficient to validate a waiver where neither client is "sufficiently informed so as to understand the actual or potential conflicts"); Whitman v. Estate of Whitman, 612 A.2d 386, 389 (N.J. Super. Ct. Law Div. 1992) (noting that a lawyer's strategy to benefit a sole heir "dealt a potentially serious blow to the Estate"). Jarvis and Tellam note: As to opposing parties in business or litigation, the clear answer in Oregon and the District of Columbia is that, with rare exception, lawyers may not represent both parties even with disclosure and consent. . . . [R]epresenting opposing parties creates a fixed-sum or zero-sum game - more for one participant necessarily means less for the other. Jarvis & Tellam, supra note 1, at 173 (citations omitted); cf. Conrad Chevrolet v. Rood, 862 S.W.2d 312, 314 (Ky. 1993) (finding that consent was not possible because the lawyer in a business transaction had confidential information from one client that would be useful to the other); People v. McDowell, 718 P.2d 541, 545 (Colo. 1986) (holding that joint representation of both a buyer and a seller of a corporation was impermissible even with the clients' consent because the lawyer "could not effectively exercise independent professional judgment on behalf of one of them without adversely affecting the interests of the other"); In re Rockoff, 331 A.2d 609, 611 (N.J. 1975) (Pashman, J., concurring) (advocating a per se prohibition of multiple representation in real property transactions); In re Lanza, 322 A.2d 445, 448 (N.J. 1974) (stating that simultaneous representation of two parties in negotiating a contract ordinarily is impermissible); Developments in the Law - Conflicts of Interest in the Legal Profession, 94 HARV. L. REV. 1244, 1295-96 (1981) (arguing that joint representation inevitably hurts one of the two clients).
89. The only commentator who has considered the substantive issues relating to consent in conflict-of-interest decisionmaking is Nancy Moore. See Moore, supra note 1, at 238. Moore analyzes the then-proposed Model Rules and concludes that the client-override provisions are too diffuse: [T]he wholesale transfer of decision-making power to lawyers in multiple representation cases cannot be justified unless it is true - as both the ABA Code and the Proposed Model Rules assume - that rational potential clients believe that a lawyer's objectivity and superior legal knowledge always make him the more competent decision maker. Id. Moore argues that this assumption is sometimes correct but often fails because a client has superior information or a better feel for what is important to him. Moore therefore proposes an alternative "capacity for informed and voluntary consent" standard. This standard focuses on (1) whether the clients are likely to understand the advantages and disadvantages of the particular representation, and (2) whether the decision is based on an assessment of those advantages and disadvantages rather than on psychological or economic stress. Id. at 240; cf. Jarvis & Tellam, supra note 1, at 147, 165 (considering the waivability of conflicts primarily from the perspective of whether the prevailing rules require clarification). Although this Essay shares many of Moore's concerns, the approach it takes focuses less on whether the client's choice is wise or duress-free and more on the decisions lawyers and clients should be entitled to make. The psychological inquiry that Moore's analysis would require makes her proposal difficult to apply. Moreover, unlike Moore, I envision a category of cases in which client interests are not dominant. See infra text accompanying notes 55-73. I agree with Moore that there is another category of cases in which lawyers have an independent obligation to reject joint representation. Under my approach, however, the lawyer should make the assessment of whether to reject directly on the basis of whether the engagement is reasonably consistent with the client's best interest. See infra text accompanying notes 136-140.
90. Arguably, the codes' mandates may encompass a limited exception for cases in which the potential limitation of the representation is de minimis or extraordinarily unlikely to occur.
91. See, e.g., San Diego Navy Fed. Credit Union v. Cumis Ins. Soc'y, 208 Cal. Rptr. 494, 498 n.4 (Ct. App. 1985) (upholding a client's right to withdraw consent to joint representation); Griva v. Davison, 637 A.2d 830, 846 (D.C. 1994) (same).
92. See, e.g., Klemm v. Superior Court, 142 Cal. Rptr. 509, 513 (Ct. App. 1977) (noting that once an actual conflict develops, a previous waiver of potential conflicts becomes ineffective); Lysick v. Walcom, 65 Cal. Rptr. 406, 414 (Ct. App. 1968) (holding that when a conflict develops between an insured and insurer, the lawyer relying on consent to joint representation in an insurance policy must seek an additional waiver to continue the joint representation); Cal. State Bar Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. 1989-115 (1989) (approving blanket prospective waivers but requiring a new waiver once a potential conflict ripens into an actual conflict); cf. Ishmael v. Millington, 50 Cal. Rptr. 592, 596 (Ct. App. 1966) (suggesting a lawyer must withdraw once "adversity of interest appears in the course of the representation); Cal. State Bar Standing Comm. on Prof'l Responsibility & Conduct Formal Op. 1993-133 (1993) (noting a lawyer's "continuing responsibility to obtain [a waiving concurrent client's] written consent in the event unanticipated circumstances arise which could adversely affect the attorney's representation").
93. See, e.g., United States v. Stites, 56 F.3d 1020, 1024 (9th Cir. 1995) (noting the danger of a court's being "whipsawed" by a subsequent reversal or successive motions); William H. Raley, Co. v. Superior Court, 197 Cal. Rptr. 232, 236-37 (Ct. App. 1983) ("[T]he court . . . must consider in favor of disqualification the disruptive effect of repeated disqualification proceedings on the administrative process of the court and the financial burden of such proceedings on the moving party." (citation omitted)).
94. Courts have considered these costs primarily in considering whether to honor a motion to disqualify brought in the middle of judicial proceedings. One court reasoned as follows: The court must weigh the combined effect of a party's right to counsel of choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel unencumbered by conflicts of conflicts of [sic] interest. River West, Inc. v. Nickel, 234 Cal. Rptr. 33, 40 (Ct. App. 1987).
95. See, e.g., Comden v. Superior Court, 576 P.2d 971, 975 (Cal. 1978) (noting that a client's right to representation by counsel of his choice must yield to considerations of ethics that "run to the very integrity of our judicial process" (quoting Hull v. Celanese Corp., 513 F.2d 568, 572 (2d Cir. 1975))); Chambers v. Superior Court, 175 Cal. Rptr. 575, 580-81 (Ct. App. 1981) (weighing the needs of efficient judicial administration and the potential advantage of immediate preventative measures).
96. See, e.g., State v. Johnson, 823 P.2d 484, 491 (Utah Ct. App. 1991) ("Trial courts have an 'institutional interest in protecting the truth-seeking function of the proceedings over which [they are] presiding by considering whether [defendants have] effective assistance of counsel, regardless of any profferred waiver[s].'" (quoting United States v. Moscony, 927 F.2d 742, 749 (3d Cir. 1991))).
97. See, e.g., David Luban, The Adversary System Excuse, in THE GOOD LAWYER 83, 89 (David Luban ed., 1984) ("Each side of an adversary proceeding is represented by a lawyer whose sole obligation is to present that side as forcefully as possible; anything less, it is claimed, would subvert the operation of the system."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 54 (1991) ("[T]he assumption is that aggressive, competitive lawyering, guided exclusively by client interests, produces appropriate results."); Developments in the Law - Conflicts of Interest in the Legal Profession, supra note 52, at 1294 (arguing that the "loyalty" considerations underlying conflicts rules "occup[y] a central position in an adversary system whose legitimacy rests on the most zealous possible presentation of each party's position").
98. See, e.g., David Luban, The Adversary System Excuse, in THE GOOD LAWYER 83, 89 (David Luban ed., 1984) ("Each side of an adversary proceeding is represented by a lawyer whose sole obligation is to present that side as forcefully as possible; anything less, it is claimed, would subvert the operation of the system."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 54 (1991) ("[T]he assumption is that aggressive, competitive lawyering, guided exclusively by client interests, produces appropriate results."); Developments in the Law - Conflicts of Interest in the Legal Profession, supra note 52, at 1294 (arguing that the "loyalty" considerations underlying conflicts rules "occup[y] a central position in an adversary system whose legitimacy rests on the most zealous possible presentation of each party's position").
99. See, e.g., David Luban, The Adversary System Excuse, in THE GOOD LAWYER 83, 89 (David Luban ed., 1984) ("Each side of an adversary proceeding is represented by a lawyer whose sole obligation is to present that side as forcefully as possible; anything less, it is claimed, would subvert the operation of the system."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 54 (1991) ("[T]he assumption is that aggressive, competitive lawyering, guided exclusively by client interests, produces appropriate results."); Developments in the Law - Conflicts of Interest in the Legal Profession, supra note 52, at 1294 (arguing that the "loyalty" considerations underlying conflicts rules "occup[y] a central position in an adversary system whose legitimacy rests on the most zealous possible presentation of each party's position").
100. See, e.g., Wheat v. United States, 486 U.S. 153, 164 (1988) (upholding the disqualification of a lawyer despite a client's waiver because joint representation represented a threat to the administration of justice); River West, 234 Cal. Rptr. at 40 (holding that judges evaluating disqualification motions must weigh, inter alia, the client's interest in choosing counsel against "the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel unencumbered by conflicts of . . . interest"); Attorney Grievance Comm'n v. Kent, 653 A.2d 909, 920 (Md. 1995) (holding that consent to a conflict is not legally effective when it would undermine the "public interest," as when it would result in preventing the public disclosure of a crime); see also MGM v. Tracinda Corp., 43 Cal. Rptr. 2d 327, 331 (Ct. App. 1995) (noting the court's interest in the "scrupulous administration of justice and in the integrity of the bar" and "considerations of ethics that run to the very integrity of our judicial process" (emphasis omitted)); Greene v. Greene, 47 N.Y.2d 447, 451 (1979) (holding that the rule against conflicted representation guards against "abuse of the adversary system"); cf. Lon Fuller, The Adversary System, in TALKS ON AMERICAN LAW 34, 34-36 (H. Berman ed., rev. ed. 1971) ("The judge cannot know how strong an argument is until he has heard it from the lips of one who has dedicated all the power of his mind to its formulation.").
101. Cf. State v. Rivera, 556 A.2d 1227, 1233 (N.J. Super. Ct. App. Div. 1989) ("[A] defendant's right to counsel of choice [can be] outweighed by the need to preserve public confidence in the judicial system . . . ."); Graf v. Frame, 352 S.E.2d 31, 38 (W. Va. 1986) ("[W]here the public interest is involved, an attorney may not represent conflicting interests even with the consent of all concerned. It is essential that the public have absolute confidence in the integrity and impartiality of our system of justice." (citation omitted)).
102. See, e.g., Collett, supra note 35, at 580 (describing how joint representation may result in "critical facts" being omitted); Monroe H. Freedman, The Professional Responsibility of the Prosecuting Attorney, 55 GEO. L.J. 1030, 1030-32 (1967) (arguing that competitive lawyering helps factfinders understand evidence and law); Zacharias, supra note 61, at 54 (arguing that the adversary process helps "ensure[] that factfinders will not overlook obscure but relevant information").
103. In deciding whether to engage a lawyer in a case in which the lawyer might be, or should be, called as a witness, a client needs to recognize that the lawyer's representation may undermine her credibility as a witness, to the client's detriment. Alternatively, one option for employing the lawyer may be for the client to forgo using the lawyer as a witness on the grounds that she is not "necessary," even if potentially helpful. Even if the client wants the lawyer to continue as counsel, however, professional rules typically regulate the lawyer's decision to engage in the representation because the system and the adversary may have an interest in receiving the lawyer's testimony. See, e.g., MODEL RULES, supra note 2, Rule 3.7.
104. See, e.g., supra text accompanying note 39 (discussing a hypothetical scenario).
105. For example, in the scenarios discussed above, see supra text accompanying note 39; supra note 65 and accompanying text, the lawyer may have an interest in encouraging the client to forgo using her as a witness so that the lawyer can reap the rewards inherent in undertaking the representation.
106. These interests include, inter alia, maintaining a justice system that produces appropriate results, providing appropriate deterrence through criminal and civil verdicts, and assuring fair compensation to injured victims of torts and crimes.
107. One situation in which concurrent clients' interests clearly may be inconsistent with societal interests arises when a single lawyer represents multiple clients before a grand jury. Because the lawyer can orchestrate stonewalling by both clients (i.e., the exercise of their Fifth Amendment rights), the lawyer can interfere with the prosecution's efforts to obtain incriminating evidence from one against the other. See, e.g., Nancy J. Moore, Disqualification of an Attorney Representing Multiple Witnesses Before a Grand Jury: Legal Ethics and the Stonewall Defense, 27 UCLA L. REV. 1, 4 (1979) (analyzing the stonewalling issue); see also Covy, supra note 40, at 812-13 (discussing the potential conflict between a client's right to counsel of choice, his right to effective assistance of counsel, and "the judicial interest in promoting the effective administration of justice"). In Wheat v. United States, 486 U.S. 153, 164 (1988), the Supreme Court held that in some such instances, society's interests in the fair administration of justice may outweigh the clients' interest in insisting on the benefits of joint representation. See also United States v. Stites, 56 F.3d 1020, 1025 (9th Cir. 1995) (overruling a defendant's consent to counsel's conflicted representation on the basis of the need for proper judicial administration); United States v. Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976) (upholding the government's standing to allege the existence of a conflict of interest in the representation of multiple grand jury witnesses on the grounds that the lawyer's advice to "stonewall" the grand jury would hamper the investigation); Pirillo v. Takiff, 341 A.2d 896, 902-06 (Pa. 1975) (same).
108. One situation in which concurrent clients' interests clearly may be inconsistent with societal interests arises when a single lawyer represents multiple clients before a grand jury. Because the lawyer can orchestrate stonewalling by both clients (i.e., the exercise of their Fifth Amendment rights), the lawyer can interfere with the prosecution's efforts to obtain incriminating evidence from one against the other. See, e.g., Nancy J. Moore, Disqualification of an Attorney Representing Multiple Witnesses Before a Grand Jury: Legal Ethics and the Stonewall Defense, 27 UCLA L. REV. 1, 4 (1979) (analyzing the stonewalling issue); see also Covy, supra note 40, at 812-13 (discussing the potential conflict between a client's right to counsel of choice, his right to effective assistance of counsel, and "the judicial interest in promoting the effective administration of justice"). In Wheat v. United States, 486 U.S. 153, 164 (1988), the Supreme Court held that in some such instances, society's interests in the fair administration of justice may outweigh the clients' interest in insisting on the benefits of joint representation. See also United States v. Stites, 56 F.3d 1020, 1025 (9th Cir. 1995) (overruling a defendant's consent to counsel's conflicted representation on the basis of the need for proper judicial administration); United States v. Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976) (upholding the government's standing to allege the existence of a conflict of interest in the representation of multiple grand jury witnesses on the grounds that the lawyer's advice to "stonewall" the grand jury would hamper the investigation); Pirillo v. Takiff, 341 A.2d 896, 902-06 (Pa. 1975) (same).
109. See, e.g., McMunigal, supra note 1, at 840-42 (discussing the "appearances of impropriety" rationale for rejecting concurrent representation); Neil D. O'Toole, Canon 9 of the Code of Professional Responsibility: An Elusive Ethical Guideline, 62 MARQ. L. REV. 313, 350 (1979) (arguing that the appearance-of-impropriety rationale requires delineation); Anthony G. Flynn, Note, Disqualification of Counsel for the Appearance of Professional Impropriety, 25 CATH. U. L. REV. 343, 362-63 (1976) (discussing cases relying on the appearance-of-impropriety rationale); Regina Zelonker, Note, Appearance of Impropriety as the Sole Ground for Disqualification, 31 U. MIAMI L. REV. 1516, 1523 (1977) (supporting a two-part test for evaluating motions to disqualify based on the "appearance of impropriety"); cf. Victor H. Kramer, The Appearance of Impropriety Under Canon 9: A Study of the Federal Judicial Process Applied to Lawyers, 65 MINN. L. REV. 243, 265 (1980) (discussing the judicial use of appearance-of-impropriety reasoning in conflicts and other cases and concluding that it "is simply too dangerous and vague a standard to serve as a foundation for guiding professional conduct").
110. See, e.g., McMunigal, supra note 1, at 840-42 (discussing the "appearances of impropriety" rationale for rejecting concurrent representation); Neil D. O'Toole, Canon 9 of the Code of Professional Responsibility: An Elusive Ethical Guideline, 62 MARQ. L. REV. 313, 350 (1979) (arguing that the appearance-of-impropriety rationale requires delineation); Anthony G. Flynn, Note, Disqualification of Counsel for the Appearance of Professional Impropriety, 25 CATH. U. L. REV. 343, 362-63 (1976) (discussing cases relying on the appearance-of-impropriety rationale); Regina Zelonker, Note, Appearance of Impropriety as the Sole Ground for Disqualification, 31 U. MIAMI L. REV. 1516, 1523 (1977) (supporting a two-part test for evaluating motions to disqualify based on the "appearance of impropriety"); cf. Victor H. Kramer, The Appearance of Impropriety Under Canon 9: A Study of the Federal Judicial Process Applied to Lawyers, 65 MINN. L. REV. 243, 265 (1980) (discussing the judicial use of appearance-of-impropriety reasoning in conflicts and other cases and concluding that it "is simply too dangerous and vague a standard to serve as a foundation for guiding professional conduct").
111. See, e.g., McMunigal, supra note 1, at 840-42 (discussing the "appearances of impropriety" rationale for rejecting concurrent representation); Neil D. O'Toole, Canon 9 of the Code of Professional Responsibility: An Elusive Ethical Guideline, 62 MARQ. L. REV. 313, 350 (1979) (arguing that the appearance-of-impropriety rationale requires delineation); Anthony G. Flynn, Note, Disqualification of Counsel for the Appearance of Professional Impropriety, 25 CATH. U. L. REV. 343, 362-63 (1976) (discussing cases relying on the appearance-of-impropriety rationale); Regina Zelonker, Note, Appearance of Impropriety as the Sole Ground for Disqualification, 31 U. MIAMI L. REV. 1516, 1523 (1977) (supporting a two-part test for evaluating motions to disqualify based on the "appearance of impropriety"); cf. Victor H. Kramer, The Appearance of Impropriety Under Canon 9: A Study of the Federal Judicial Process Applied to Lawyers, 65 MINN. L. REV. 243, 265 (1980) (discussing the judicial use of appearance-of-impropriety reasoning in conflicts and other cases and concluding that it "is simply too dangerous and vague a standard to serve as a foundation for guiding professional conduct").
112. See, e.g., McMunigal, supra note 1, at 840-42 (discussing the "appearances of impropriety" rationale for rejecting concurrent representation); Neil D. O'Toole, Canon 9 of the Code of Professional Responsibility: An Elusive Ethical Guideline, 62 MARQ. L. REV. 313, 350 (1979) (arguing that the appearance-of-impropriety rationale requires delineation); Anthony G. Flynn, Note, Disqualification of Counsel for the Appearance of Professional Impropriety, 25 CATH. U. L. REV. 343, 362-63 (1976) (discussing cases relying on the appearance-of-impropriety rationale); Regina Zelonker, Note, Appearance of Impropriety as the Sole Ground for Disqualification, 31 U. MIAMI L. REV. 1516, 1523 (1977) (supporting a two-part test for evaluating motions to disqualify based on the "appearance of impropriety"); cf. Victor H. Kramer, The Appearance of Impropriety Under Canon 9: A Study of the Federal Judicial Process Applied to Lawyers, 65 MINN. L. REV. 243, 265 (1980) (discussing the judicial use of appearance-of-impropriety reasoning in conflicts and other cases and concluding that it "is simply too dangerous and vague a standard to serve as a foundation for guiding professional conduct").
113. See, e.g., supra text accompanying notes 35-43.
114. Zelonker, supra note 70, at 1523 (approving the "appearance of impropriety" rationale as a basis for disqualification motions); see also Moore, supra note 1, at 214, 227-29 (discussing the rationale that overriding client consent may be necessary to preserve "lawyers' reputations through an avoidance of apparent impropriety").
115. See, e.g., In re Bentley, 688 P.2d 601, 605 (Ariz. 1984) (relying, in part, on the appearance-of-impropriety rationale).
116. RESTATEMENT, supra note 25, § 202 cmt. g(iv); see also supra text accompanying notes 27-30 (discussing the Restatement's approach to waiver).
117. See O'Toole, supra note 70, at 321 (discussing a large number of pre-Model Rules cases in which courts relied on Canon 9 of the Model Code in disposing of disqualification motions); Steinberg & Sharpe, supra note 1, at 1 & n.1 (discussing the "continual parade of litigation" involving conflict issues); Craig D. Grear, Current Developments, Conflicts of Interest: Simultaneous Representation, 2 GEO. J. LEGAL ETHICS 103 (1988) (discussing actions against law firms that agree to engage in conflicted representation).
118. See O'Toole, supra note 70, at 321 (discussing a large number of pre-Model Rules cases in which courts relied on Canon 9 of the Model Code in disposing of disqualification motions); Steinberg & Sharpe, supra note 1, at 1 & n.1 (discussing the "continual parade of litigation" involving conflict issues); Craig D. Grear, Current Developments, Conflicts of Interest: Simultaneous Representation, 2 GEO. J. LEGAL ETHICS 103 (1988) (discussing actions against law firms that agree to engage in conflicted representation).
119. At least one commentator has mentioned this issue in the context of evaluating what degree of information clients must receive before giving their so-called "informed consent." See Strauss, supra note 4, at 341-44.
120. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? 106-15 (1974) (discussing how lawyers' incentives influence decisions they make on behalf of clients); cf. Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1351 (1995) (discussing the effect of lawyers' natural incentives in causing lawyers to adopt a highly partisan approach to representation).
121. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? 106-15 (1974) (discussing how lawyers' incentives influence decisions they make on behalf of clients); cf. Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1351 (1995) (discussing the effect of lawyers' natural incentives in causing lawyers to adopt a highly partisan approach to representation).
122. Clients tend to stick with the lawyers they have. A client who engages in continuing communications with a lawyer to which the client has been referred will often discuss new matters with that lawyer as well.
123. A lawyer's economic incentives in engaging in conflicted representation sometimes may extend beyond a mere desire to keep the client. When the lawyer is implicated in wrongdoing, referring the client elsewhere may result in action being taken against her. See, e.g., Fairfax Sav., F.S.B. v. Weinberg & Green, 685 A.2d 1189 (Md. Ct. Spec. App. 1995) (involving a firm that had overbilled its client in one case and encouraged the client to waive the conflict in subsequent representation, inter alia, to avoid having the overbilling become public). That, in part, may be why the Model Rules have framed the inquiry for nonwaivable conflicts as whether "a disinterested lawyer" could properly "ask for such agreement or provide representation on the basis of the client's consent." MODEL RULES, supra note 2, Rule 1.7 cmt. para. 5.
124. See, e.g., Zacharias, supra note 1 (manuscript at 8) (describing the different kinds of advice lawyers might give clients faced with a conflict of interest). Lawyers also have some economic incentives to avoid conflicted representation when their performance may be impaired. Poor performance may result in client dissatisfaction or a tarnished reputation. See McMunigal, supra note 1, at 833-34 (noting the existence of incentives to avoid conflicted representation but arguing that the adoption of professional conflict-of-interest rules implicitly assumes that such incentives are insufficient in practice).
125. See MODEL RULES, supra note 2, Rule 1.7 cmt. para. 5 ("[A] lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee."); see also Lee E. Hejmanowski, Note, An Ethical Treatment of Attorneys' Personal Conflicts of Interest, 66 S. CAL. L. REV. 881, 892 (1993) (discussing the interplay between conflict-of-interest regulation and lawyers' economic incentives in accepting representation).
126. See MODEL RULES, supra note 2, Rule 1.7 cmt. para. 5 ("[A] lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee."); see also Lee E. Hejmanowski, Note, An Ethical Treatment of Attorneys' Personal Conflicts of Interest, 66 S. CAL. L. REV. 881, 892 (1993) (discussing the interplay between conflict-of-interest regulation and lawyers' economic incentives in accepting representation).
127. See, e.g., Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339, 1345-46 (9th Cir. 1981) (adopting the Boivin rule that consent must be informed); Image Technical Servs. v. Eastman Kodak, 820 F. Supp. 1212, 1216-17 (N.D. Cal. 1993) (rejecting consent as uninformed); cf. In re Perry, 194 B.R. 875, 879 (E.D. Cal. 1996) (inquiring into the validity of a client's waiver); People v. Johnson, 164 Cal. Rptr. 746, 751 (Ct. App. 1980) (finding implied consent after inquiring into its presence).
128. 142 Cal. Rptr. 509 (Ct. App. 1977).
129. See id. at 510-11. This waiver was not unreasonable in light of the fact that the husband earned a meager living as a part-time carpenter. See id. at 510.
130. See id. at 510-11.
131. See id. at 511.
132. See id.
133. See id. These were the facts on which the court based its decision. To give the court its due however, the actual situation was a bit more complicated. Most significantly, before signing the written waiver, Mrs. Klemm had expressed confusion as to whether there was a conflict and whether she wanted the lawyer to continue. See id.
134. See id.
135. See id. at 512.
136. See id. at 513.
137. See id.
138. In Klemm, the court was following the old California professional rule regarding concurrent conflicts of interest. See id. at 511-12. This rule included essentially the same absolute consent provision as its successor. See CAL. BAR RULES OF PROFESSIONAL CONDUCT Rule 5-102(b) (1981) ("A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned.").
139. Klemm, 142 Cal. Rptr. at 512.
140. See id. at 513.
141. See cases cited supra note 9.
142. 97. See, e.g., In re Candida S., 9 Cal. Rptr. 2d 521, 528-29 (Ct. App. 1992) (holding that a lawyer for multiple sexually-abused children in a single dependency hearing was not subject to disqualification by the parents); Castro v. Los Angeles County Bd. of Supervisors, 284 Cal. Rptr. 154, 161 (Ct. App. 1991) (holding that the representation of separate parties by separate administrative units of a county nonprofit corporation involved potential conflicts so "speculative" in nature as to pass muster under the conflicts rules).
143. See, e.g., Kelley's Case, 627 A.2d 597, 600 (N.H. 1993) (holding that not even one client's promise to indemnify the other sufficed to offset the real risks of the potential conflict); Whitman v. Estate of Whitman, 612 A.2d 386, 389-90 (N.J. Super. Ct. Law Div. 1992) (holding that a potential conflict between a sole heir and an estate is serious because of possible intestacy interests).
144. See Klemm, 142 Cal. Rptr. at 512.
145. See McMunigal, supra note 1, at 847 (arguing that the distinction between actual and potential conflicts "reflects an underlying conceptual confusion as to the appropriate response to situations which threaten attorney impairment").
146. It would be a fair reading of Klemm to conclude that the court's surprising dicta resulted from its loose use of language and inadvertent conflating of multiple rationales. Whether that is the case or not, the resulting decision does reflect the tensions in the law of consent that this Essay addresses and provides a useful vehicle for analyzing that tension.
147. Klemm, 142 Cal. Rptr. at 512.
148. Id.
149. By "expected recovery," I refer to the potential recovery, discounted for its improbability and the costs of obtaining the recovery (including attorneys' fees).
150. "Intelligent" and "informed" clearly are linked concepts. I do not mean to suggest that courts parse them finely in evaluating waivers. Nevertheless, each term has separate substantive content that probably plays a role in judicial evaluations of consent.
151. For instance, this would be true if the opponent were a valued client in other matters.
152. See, e.g., supra text accompanying note 39 (discussing such a scenario).
153. See supra text accompanying notes 35-42.
154. See CAL. RULES, supra note 5, Rule 3-310.
155. Cf. Jones v Barnes, 463 U.S. 745 (1983) (approving a lawyer's decision to omit briefing issues thai his client wanted him to argue before the Appellate Division of the New York Supreme Court on grounds that lawyers serve an important function in winnowing out weaker arguments on appeal); see also supra notes 59-62 and accompanying text (discussing the putative effects of adversarial advocacy).
156. Cf. Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389 (1992) (arguing that the phenomenon of professional regulation is based on a vision of lawyering that is different from the vision of the courts).
157. See supra note 77 and accompanying text.
158. See supra Part IV.
159. MODEL RULES, supra note 2, Rule 1.7(a)(1) (emphasis added).
160. See id. Rule 1.7(b).
161. Id. Rule 1.7(b)(1) (emphasis added).
162. Under Model Rule 1.2, a lawyer and client may agree to "limit the objectives of the representation if the client consents after consultation." MODEL RULES, supra note 2, Rule 1.2(c). With some exceptions, this includes the right to limit the means by which the representation is to occur. See David A. Hyman & Charles Silver, And Such Small Portions: Limited Performance Agreements and the Cost/Quality/Access Trade-Off, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at Part IV, on file with The Yale Law Journal) (identifying areas in which lawyers and clients may limit objectives). The case law tends to honor most such agreements and the codes do as well, provided the basic competence of the lawyer is not threatened. For a full discussion of this issue, see Fred C. Zacharias, Limited Performance Agreements: Should Clients Get What They Pay for?, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (on file with The Yale Law Journal) [hereinafter Zacharias, Performance Agreements], and the ensuing debate in Hyman & Silver, supra, and Fred C. Zacharias, Reply to Hyman and Silver: Clients Should Not Get Less Than They Deserve, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (on file with The Yale Law Journal) [hereinafter Zacharias, Reply].
163. Under Model Rule 1.2, a lawyer and client may agree to "limit the objectives of the representation if the client consents after consultation." MODEL RULES, supra note 2, Rule 1.2(c). With some exceptions, this includes the right to limit the means by which the representation is to occur. See David A. Hyman & Charles Silver, And Such Small Portions: Limited Performance Agreements and the Cost/Quality/Access Trade-Off, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at Part IV, on file with The Yale Law Journal) (identifying areas in which lawyers and clients may limit objectives). The case law tends to honor most such agreements and the codes do as well, provided the basic competence of the lawyer is not threatened. For a full discussion of this issue, see Fred C. Zacharias, Limited Performance Agreements: Should Clients Get What They Pay for?, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (on file with The Yale Law Journal) [hereinafter Zacharias, Performance Agreements], and the ensuing debate in Hyman & Silver, supra, and Fred C. Zacharias, Reply to Hyman and Silver: Clients Should Not Get Less Than They Deserve, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (on file with The Yale Law Journal) [hereinafter Zacharias, Reply].
164. Under Model Rule 1.2, a lawyer and client may agree to "limit the objectives of the representation if the client consents after consultation." MODEL RULES, supra note 2, Rule 1.2(c). With some exceptions, this includes the right to limit the means by which the representation is to occur. See David A. Hyman & Charles Silver, And Such Small Portions: Limited Performance Agreements and the Cost/Quality/Access Trade-Off, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (manuscript at Part IV, on file with The Yale Law Journal) (identifying areas in which lawyers and clients may limit objectives). The case law tends to honor most such agreements and the codes do as well, provided the basic competence of the lawyer is not threatened. For a full discussion of this issue, see Fred C. Zacharias, Limited Performance Agreements: Should Clients Get What They Pay for?, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (on file with The Yale Law Journal) [hereinafter Zacharias, Performance Agreements], and the ensuing debate in Hyman & Silver, supra, and Fred C. Zacharias, Reply to Hyman and Silver: Clients Should Not Get Less Than They Deserve, 11 GEO. J. LEGAL ETHICS (forthcoming 1998) (on file with The Yale Law Journal) [hereinafter Zacharias, Reply].
165. For example, the lawyer and client may agree not to pursue particular claims because of their effect on third parties.
166. Arguably, failing to guide the client adequately can be conceived of as failing to assure "informed" consent and therefore a breach of the lawyer's obligation. The rules themselves, however, simply require the lawyers to provide the client with information.
167. See MODEL RULES, supra note 2, Rule 1.7(b)(2) ("[T]he consultation shall include explanation of the implications of the common representation and the advantages and risks involved." (emphasis added)).
168. See cases cited supra note 9.
169. Issues of autonomy and client waiver arise in many legal contexts and in many substantive areas other than law. Cf. supra note 26 and accompanying text (noting the presence of these issues in the medical context). Not all contexts, however, involve the same countervailing considerations that are found in the legal ethics arena. In evaluating issues of patient consent to medical treatment, for example, scholars focus mainly on the patient's interests and on what makes consent informed, rather than on separate societal interests in disallowing consent. But cf. BROCK, supra note 31, at 33-34 (arguing that patients have a moral duty not to delegate medical decisions). Only in a few medical contexts, such as abortion and physician-assisted suicide, have scholars or the courts even considered overriding a patient's voluntary decision to accept or refuse treatment. With respect to waivers of rights in other legal contexts in which the exercise of autonomy generally is honored - for example, the contract and criminal contexts - courts have deemphasized the issue of whether a waiver benefits a litigant in favor of a free-market approach that focuses almost exclusively on whether a waiver was "voluntary" or "knowing and intelligent." See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973) (holding that the key for consent to police searches is whether the consent was voluntary); Miranda v. Arizona, 384 U.S. 436, 492 (1966) (holding that a waiver of the right against self-incrimination must be "knowing and intelligent"); Clark v. West, 86 N.E. 1, 5 (N.Y. 1908) (defining a proper waiver of a contractual condition as "the intentional relinquishment of a known right"). Unlike in legal ethics situations, society sometimes happily accepts the most stupid of waivers, so long as the consenting party is informed. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (holding that a consent to a search was valid even though the defendant did not realize he was free to go without a search); Moran v. Burbine, 475 U.S. 412, 424 (1986) (requiring only that the defendant "understand the nature of his rights and the consequences of abandoning them" for a waiver of the right against self-incrimination to be valid); see also 5 SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS § 685 (3d ed. 1961) (noting that a contractual waiver is "knowing" as long as the party is aware of the relevant facts, even if the party is ignorant of their legal effect). In these contexts, independent societal interests in regulating the conduct of participants in the transaction are implemented through separate doctrines, rather than through assessments of whether the waiver was valid. See infra note 123.
170. Employing an independent rule distinguishing nonwaivable from waivable conflicts is consistent with society's approach to autonomy in other contexts. It is commonplace for society to identify specific areas in which citizens' autonomy will not be honored because society disapproves of particular choices. Typically, this disapproval takes the form of outright legal prohibitions. Laws forbidding suicide, abortion, dueling, driving without a seatbelt, and the like fit within this category. In a few areas, society has expressed a general preference in favor of free will but has specified limited circumstances in which independent societal interests outweigh individual rights. In contract cases, for example, independent societal interests are implemented through the rubric of separate doctrines of "public policy ."See, e.g., Cudahy Junior Chamber of Commerce v. Quirk, 165 N.W.2d 116, 118 (Wis. 1969) (declining to enforce a promise to pay off on a dare on the grounds that gambling is against public policy). In criminal cases, societal interests generally are enforced through the imposition of constitutionally derived rules to curb police misbehavior. See, e.g., Miranda, 384 U.S. at 479 (establishing a prophylactic rule limiting custodial interrogations). Unlike the current legal ethics codes, however, contracts and criminal law for the most part implement the independent societal interests directly, rather than under the guise of evaluating the quality of the party's waiver. This Essay's proposals follow that approach. One significant exception in criminal law bears mentioning; namely, the U.S. Supreme Court's "scrupulous" scrutiny of a defendant's consent to interrogation after the right to counsel has been asserted. See, e.g., Michigan v. Mosely, 423 U.S. 96, 101 n.7 (1975) (citing Miranda, 384 U.S. at 474) (holding ineffective a consent to interrogation after counsel has been requested). The justification for this special hurdle to the exercise of the defendant's choice is similar to the California court's apparent rationale in Klemm: society's interest in maintaining respect for the adversarial process (i.e., a defendant acting through his advocate) once litigation begins. See Michigan v. Jackson, 475 U.S. 625, 626 (1986) (reaffirming Edwards v. Arizona, 451 U.S. 477 (1981)) (noting the importance of protecting the accused's choice to communicate through counsel).
171. This has been the focus of the medical and legal scholarship addressing the issue of "informed consent." See sources cited supra notes 4, 26.
172. See Zacharias, supra note 1 (manuscript at 8-9) (suggesting, in passing, the need to create a separate rule that provides guidance to lawyers).
173. See supra note 18 and accompanying text.
174. Although the precise reasons for its rule are not clear, Texas applies a narrower, but similar, provision forbidding consent to multiple representation in cases involving "opposing parties to the same litigation." TEX. DISCIPLINARY RULES OF PROFESSIONAL CONDUCT Rule 1.06(a) (1997).
175. "Person" refers to any legally recognizable body or institution.
176. See supra notes 55-69 and accompanying text.
177. See. e.g., Flatt v. Superior Court, 885 P.2d 950, 955 (Cal. 1994) (using loyalty concerns as a reason for disallowing multiple representation).
178. Thus, for example, even in cases in which the California courts would forbid a client waiver at the trial stage, see supra text accompanying note 94, the courts apparently would allow joint representation at an earlier stage. See, e.g., Davidson v. Davidson, 204 P.2d 71, 77 (Cal. Dist. Ct. App. 1949) (allowing joint representation in drafting divorce settlements).
179. This aspect of Rule 1 has important implications for a lawyer who acts as a mediator for two parties. To the extent the lawyer's very function is to bring about settlement, Rule 1 is inapplicable even though the two parties are direct opponents. Under the ABA's Model Rule 1.7(a), the mediator-lawyer considering such joint representation would need to evaluate her "relationship" with the two clients. MODEL RULES, supra note 2, Rule 1.7(a). This consideration is still relevant in ABA jurisdictions under proposed Rule 2(c). But the more significant question for the lawyer under this Essay's proposals (i.e., Rule 3(d)) is whether mediation is reasonably consistent with each client's best interests, a decision that the ABA approach does not explicitly require the lawyer to make.
180. The Model Rules require lawyers to advise clients of the advantages of joint representation. See MODEL RULES, supra note 2, Rule 1.7(b)(2). My proposal does not include such a requirement on the assumption that lawyers will offer this information in any event, because it may help them keep the client. Nevertheless, any jurisdiction wishing to add the requirement can do so without adversely affecting the proposal.
181. The Oregon rule, discussed supra notes 20-24 and accompanying text, emphasizes the distinction between actual and potential conflicts even more than the ABA rules do. Primarily for reasons of process and paternalism, Oregon would consider actual conflicts nonwaivable and potential conflicts waivable. See Jarvis & Tellam, supra note 1, at 172-76 (defending the Oregon rule). The distinction is deemed less important under this Essay's proposals. The proposed rule already carves out the category of cases that should, as a theoretical matter, truly be considered nonwaivable. For the situations that the Oregon rule anticipates, the proposed rule leaves uncovered only those actual conflict situations in which clients are informed and waive the conflict but in which there are sound reasons not to trust the waiver. Oregon's approach to these cases relies upon an overbroad, bright-line rule that forbids all consent. This Essay's proposal is more deferential to client autonomy. It protects clients by requiring full advice to clients who wish to consent and by requiring lawyers to engage in separate introspection that includes an independent judgment by the lawyer that a waiver is in the client's best interests.
182. MODEL RULES, supra note 2, Rule 1.7(b).
183. Cf. supra notes 77-80 (discussing a lawyer's obligations in advising a client on whether to consent).
184. The requirement of written information is a prophylactic requirement currently employed by some jurisdictions to ensure that clients receive the necessary advice and to protect lawyers who are subsequently accused of failing to provide full information. Forcing the lawyer to commit the advice to writing also makes her focus on doing a good job in the information-giving process. Hence, this Essay's proposal includes a writing requirement in Rule 3, which is to guide lawyer behavior, but not in Rule 1. which is more concerned with defining the content of the advice. Different jurisdictions could reasonably incorporate a writing requirement into Rule 2 or eliminate it altogether.
185. Conflict-of-interest rules like Model Rules 1.7 to 1.9 are designed, in part, to codify lawyers' fiduciary obligations to their clients. See, e.g., Goldman v. Kane, 329 N.E.2d 770, 772-73 (Mass. App. Ct. 1975) (imposing a strict standard of fiduciary care upon lawyers); RESTATEMENT, supra note 25, § 28 cmt. b ("A lawyer is a fiduciary."). As 1 have discussed elsewhere, the lawyer's obligation to prioritize her client's interests over her own extends to the retainer stage of the representation. See Zacharias, Performance Agreements, supra note 117 (manuscript at 18, 45) (noting a lawyer's duty to make sure the client is signing a reasonable retainer agreement).
186. Conflict-of-interest rules like Model Rules 1.7 to 1.9 are designed, in part, to codify lawyers' fiduciary obligations to their clients. See, e.g., Goldman v. Kane, 329 N.E.2d 770, 772-73 (Mass. App. Ct. 1975) (imposing a strict standard of fiduciary care upon lawyers); RESTATEMENT, supra note 25, § 28 cmt. b ("A lawyer is a fiduciary."). As 1 have discussed elsewhere, the lawyer's obligation to prioritize her client's interests over her own extends to the retainer stage of the representation. See Zacharias, Performance Agreements, supra note 117 (manuscript at 18, 45) (noting a lawyer's duty to make sure the client is signing a reasonable retainer agreement).
187. See, e.g., sources cited supra notes 45-47.
188. The comment to Model Rule 1.7 puts the determination in terms of whether a "disinterested lawyer would conclude that the client should not agree to the representation under the circumstances . . . ." MODEL RULES, supra note 2, Rule 1.7 cmt. para. 5; see also Fairfax Sav., F.S.B, v. Weinberg & Green, 685 A.2d 1189, 1213-14 (Md. Ct. Spec. App. 1996) (implementing the Model Rules comment).
189. In Klemm, discussed supra Parts IV and V, the current California rule appears to allow the litigants to waive the conflict. Under the ABA approach, the lawyer cannot accept the waiver it she believes the representation will "adversely affect [her] relationship" with either client, MODEL RULES, supra note 2, Rule 1.7(a), or if she believes "the representation will . . . be adversely affected." Id. Rule 1.7(b). Although the clients' consent might overcome the first hurdle, it probably fails under the second test; the representation of at least one client is likely to be adversely affected (though the client might reasonably believe that bearing the costs of the negative effect is warranted). Under the rules proposed in this Essay, the result is straightforward. Klemm falls within Rule 1's nonwaivable conflict category. There is no need to weigh the advantages and disadvantages to the clients or to evaluate the nature of the consent because societal interests in the adversarial process trump autonomy concerns.
190. See supra text accompanying note 10. This hypothetical scenario implicates all of the possible reasons for allowing and overruling consent. A trusting relationship between a lawyer and her client typically is critical in the criminal context. See, e.g., Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 169-70 (1996) (describing and questioning the traditional characterization of helpless and dependent criminal defendants). The client's right to choose a particular attorney also seems especially important. See, e.g., Caplin & Drysdale v. United States, 491 U.S. 617, 626 (1989) (recognizing a limited constitutional right to retain one's choice of counsel); Wheat v. United States, 486 U.S. 153, 159 (1988) (same). At the same time, however, the danger of unintelligent (or incompetent or coerced) waivers and the risk that one client's interests will be subordinated to those of the other are at their height. In the hypothetical scenario, it is likely that the lieutenant's interests will be subordinated to the kingpin's interests, either because the kingpin is paying for this privilege or because that subordination is part of the lieutenant's job description. Even in less dramatic circumstances, one of two codefendants usually can improve his lot by making a deal that incriminates the other. Moreover, independent systemic interests in requiring separate representation clearly come into play. See supra note 68 (discussing the interest in preventing stonewalling by the defendants and in preserving the proper functioning of the evidentiary process). The California rule, again, leaves the choice to the defendants, as long as they are properly informed. Model Rule 1.7(b), in contrast, forbids the representation unless the lawyer can honestly conclude that neither client's representation will be adversely affected - as, for example, in situations in which stonewalling is likely to improve the lot of both clients. See MODEL RULES, supra note 2, Rule 1.7(b). This Essay's proposed rules would divide the scenario into two kinds of cases. When the possible defenses at trial are different for the two defendants and partially inconsistent, Rule 1(b) would forcefully take the line that the Supreme Court has cautiously adopted. See Wheat, 486 U.S. at 159-60 (recognizing that the client's interests, though important, may need to give way to the societal interest in the proper administration of justice); see also Caplin & Drysdale, 491 U.S. at 626 (finding that a criminal defendant's right to the counsel of his choice is limited); Morris v. Slappy, 461 U.S. 1, 14-15 (1983) (holding that a client's right to the counsel of his choice sometimes must give way to the court's interest in the efficiency of trials). The system's interests govern. Joint representation is impermissible. When, however, the actual trial defense of the two defendants is consistent and the only conflict involves possible cooperation and plea bargaining, Rule 1 does not apply. In ABA jurisdictions, Rule 2(c) may forbid the representation, because the lawyer's relationship with one defendant can be affected by the other defendant's interest in plea bargaining (or lack thereof). But when push comes to shove, the major issue under the proposed rules involves the application of Rules 3(e) and 3(f). The lawyer must decide whether the representation is reasonably consistent with the client's best interests and, in ABA states, whether one client would be better served by independent representation. If the answer is affirmative, then the lawyer must honor her fiduciary obligation to implement her client's interests by declining the representation. The resolution of this issue probably turns on whether stonewalling is likely to be the best approach for both clients.
191. See supra text accompanying note 10. This hypothetical scenario implicates all of the possible reasons for allowing and overruling consent. A trusting relationship between a lawyer and her client typically is critical in the criminal context. See, e.g., Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 169-70 (1996) (describing and questioning the traditional characterization of helpless and dependent criminal defendants). The client's right to choose a particular attorney also seems especially important. See, e.g., Caplin & Drysdale v. United States, 491 U.S. 617, 626 (1989) (recognizing a limited constitutional right to retain one's choice of counsel); Wheat v. United States, 486 U.S. 153, 159 (1988) (same). At the same time, however, the danger of unintelligent (or incompetent or coerced) waivers and the risk that one client's interests will be subordinated to those of the other are at their height. In the hypothetical scenario, it is likely that the lieutenant's interests will be subordinated to the kingpin's interests, either because the kingpin is paying for this privilege or because that subordination is part of the lieutenant's job description. Even in less dramatic circumstances, one of two codefendants usually can improve his lot by making a deal that incriminates the other. Moreover, independent systemic interests in requiring separate representation clearly come into play. See supra note 68 (discussing the interest in preventing stonewalling by the defendants and in preserving the proper functioning of the evidentiary process). The California rule, again, leaves the choice to the defendants, as long as they are properly informed. Model Rule 1.7(b), in contrast, forbids the representation unless the lawyer can honestly conclude that neither client's representation will be adversely affected - as, for example, in situations in which stonewalling is likely to improve the lot of both clients. See MODEL RULES, supra note 2, Rule 1.7(b). This Essay's proposed rules would divide the scenario into two kinds of cases. When the possible defenses at trial are different for the two defendants and partially inconsistent, Rule 1(b) would forcefully take the line that the Supreme Court has cautiously adopted. See Wheat, 486 U.S. at 159-60 (recognizing that the client's interests, though important, may need to give way to the societal interest in the proper administration of justice); see also Caplin & Drysdale, 491 U.S. at 626 (finding that a criminal defendant's right to the counsel of his choice is limited); Morris v. Slappy, 461 U.S. 1, 14-15 (1983) (holding that a client's right to the counsel of his choice sometimes must give way to the court's interest in the efficiency of trials). The system's interests govern. Joint representation is impermissible. When, however, the actual trial defense of the two defendants is consistent and the only conflict involves possible cooperation and plea bargaining, Rule 1 does not apply. In ABA jurisdictions, Rule 2(c) may forbid the representation, because the lawyer's relationship with one defendant can be affected by the other defendant's interest in plea bargaining (or lack thereof). But when push comes to shove, the major issue under the proposed rules involves the application of Rules 3(e) and 3(f). The lawyer must decide whether the representation is reasonably consistent with the client's best interests and, in ABA states, whether one client would be better served by independent representation. If the answer is affirmative, then the lawyer must honor her fiduciary obligation to implement her client's interests by declining the representation. The resolution of this issue probably turns on whether stonewalling is likely to be the best approach for both clients.
192. See supra text accompanying note 10. This hypothetical scenario implicates all of the possible reasons for allowing and overruling consent. A trusting relationship between a lawyer and her client typically is critical in the criminal context. See, e.g., Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 169-70 (1996) (describing and questioning the traditional characterization of helpless and dependent criminal defendants). The client's right to choose a particular attorney also seems especially important. See, e.g., Caplin & Drysdale v. United States, 491 U.S. 617, 626 (1989) (recognizing a limited constitutional right to retain one's choice of counsel); Wheat v. United States, 486 U.S. 153, 159 (1988) (same). At the same time, however, the danger of unintelligent (or incompetent or coerced) waivers and the risk that one client's interests will be subordinated to those of the other are at their height. In the hypothetical scenario, it is likely that the lieutenant's interests will be subordinated to the kingpin's interests, either because the kingpin is paying for this privilege or because that subordination is part of the lieutenant's job description. Even in less dramatic circumstances, one of two codefendants usually can improve his lot by making a deal that incriminates the other. Moreover, independent systemic interests in requiring separate representation clearly come into play. See supra note 68 (discussing the interest in preventing stonewalling by the defendants and in preserving the proper functioning of the evidentiary process). The California rule, again, leaves the choice to the defendants, as long as they are properly informed. Model Rule 1.7(b), in contrast, forbids the representation unless the lawyer can honestly conclude that neither client's representation will be adversely affected - as, for example, in situations in which stonewalling is likely to improve the lot of both clients. See MODEL RULES, supra note 2, Rule 1.7(b). This Essay's proposed rules would divide the scenario into two kinds of cases. When the possible defenses at trial are different for the two defendants and partially inconsistent, Rule 1(b) would forcefully take the line that the Supreme Court has cautiously adopted. See Wheat, 486 U.S. at 159-60 (recognizing that the client's interests, though important, may need to give way to the societal interest in the proper administration of justice); see also Caplin & Drysdale, 491 U.S. at 626 (finding that a criminal defendant's right to the counsel of his choice is limited); Morris v. Slappy, 461 U.S. 1, 14-15 (1983) (holding that a client's right to the counsel of his choice sometimes must give way to the court's interest in the efficiency of trials). The system's interests govern. Joint representation is impermissible. When, however, the actual trial defense of the two defendants is consistent and the only conflict involves possible cooperation and plea bargaining, Rule 1 does not apply. In ABA jurisdictions, Rule 2(c) may forbid the representation, because the lawyer's relationship with one defendant can be affected by the other defendant's interest in plea bargaining (or lack thereof). But when push comes to shove, the major issue under the proposed rules involves the application of Rules 3(e) and 3(f). The lawyer must decide whether the representation is reasonably consistent with the client's best interests and, in ABA states, whether one client would be better served by independent representation. If the answer is affirmative, then the lawyer must honor her fiduciary obligation to implement her client's interests by declining the representation. The resolution of this issue probably turns on whether stonewalling is likely to be the best approach for both clients.
193. Cf. Green, supra note 43, at 72-73 (arguing that the disqualification of lawyers for an alleged conflict ordinarily is "not an appropriate sanction" and should be reserved for cases in which the disqualification is necessary to prevent harm to the client); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419, 423, 429 (arguing that the professional requirements requiring lawyers to avoid conflicts should be strict but that courts should not overuse these requirements to disqualify lawyers in litigation).
194. Cf. John F. Sutton, Jr., Introduction to Conflicts of Interest Symposium: Ethics, Law, and Remedies, 16 REV. LITIG. 491, 493 (1997) ("A pressing but inadequately probed issue is the extent to which legal standards for conflicting interests should vary according to the remedy being sought.").
195. The question of whether the client "could be" adequately informed encompasses three main issues: first, whether the client has the mental wherewithal to comprehend the situation; second, whether the subject matter is so complex that comprehension becomes impossible, see supra note 47 and accompanying text; and third, whether the lawyer-client relationship is sufficiently stable that the client can accept the information the lawyer provides and evaluate the lawyer's advice fairly. This Essay's proposals address the first and second issues in Rules 2(b) and 3(a)-(c) and the third issue in Rules 2(c) and 3(d)-(f).
196. See Epstein, supra note 35, at 579 ("To get a conflict-of-interest question wrong may . . . well expose the errant lawyer to a wide range of sanctions, including . . . forfeiture of fees, disciplinary proceedings, and perhaps in extreme cases even criminal sanctions.").
197. See supra note 11 and accompanying text. In the example of the representation of the buyer and seller of real estate, Rule 1 is inapplicable unless litigation over the matter is likely to occur. The system's interests in a properly functioning adversarial process do not come into play. In situations like the real estate example, clients who have the information and capacity to understand the situation have the right to exercise their free will in the matter. So long as the lawyer fully informs the clients and, in jurisdictions following the ABA approach, reasonably believes her relationship with both clients is adequate to withstand the information-giving process, Rule 2 would allow the waiver. That does not end the inquiry, however, for there is still the lawyer's role to consider. Rule 3 requires the lawyer to consider whether, given her function, she can in good conscience represent both sides. Most importantly, under Rule 3(e), she must consider whether the clients' decision is "reasonably consistent with [their] best interests in the matter," taking all cost and other considerations into account. In ABA states, Rule 3(f) would require her to make the further judgment of whether, realistically, the client or clients would be better off being represented by independent counsel.
198. See, e.g., In re Dolan, 384 A.2d 1076 (N.J. 1978) (imposing professional disciplinary sanctions upon an attorney for representing a buyer and a seller in a single real estate transaction).
199. See, e.g., Simpson v. James, 903 F.2d 372 (5th Cir. 1990) (upholding malpractice liability judgment for negligence caused by a lawyer's conflict of interest in representing concurrent clients); Ishmael v. Millington, 50 Cal. Rptr. 592, 595-96 (Ct. App. 1966) (noting the possibility of malpractice liability for representation tainted by a conflict of interest).
200. See, e.g., Electro-Wire Prods, v. Sirote & Permutt, P.C., 40 F.3d 356 (11th Cir. 1994) (remanding a case for disgorgement of fees received, due to a serious conflict of interest ignored by a lawyer); Financial Gen. Bankshares v. Metzger, 523 F. Supp. 744, 762-63 (D.D.C. 1981) (relying on a conflict of interest in deciding a fee dispute), vacated on other grounds, 680 F.2d 768 (D.C. Cir. 1982); Goldstein v. Lees, 120 Cal. Rptr. 253, 255 (Ct. App. 1975) ("It is settled in California that an attorney may not recover for services rendered . . . in contradiction to the requirements of professional responsibility.").
201. See, e.g., Green, supra note 43, at 74 (noting court's wariness of tactical disqualification motions); Lindgren, supra note 143, at 430, 434-36 (arguing that "disqualification is not the same as discipline"); O'Toole, supra note 70, at 314 nn.5-10 (cataloguing cases involving tactical disqualification motions).
202. To quote Nancy Moore's evaluation of the conflict-of-interest rules proposed in the Model Rules, the significance of new ethics regulation "is not limited to a change in the basis, or even frequency, of attorney discipline - it should also educate the honest practitioner." Moore, supra note 1, at 212.
203. See Zacharias, Performance Agreements, supra note 117 (manuscript at 45) (arguing that lawyers are obligated to protect a client's interests even at the retainer stage); Zacharias, Reply, supra fiote 117 (manuscript at 5) (same).
204. See Zacharias, Performance Agreements, supra note 117 (manuscript at 45) (arguing that lawyers are obligated to protect a client's interests even at the retainer stage); Zacharias, Reply, supra fiote 117 (manuscript at 5) (same).
205. See, e.g., F. Raymond Marks & Darlene Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation?, 1974 U. ILL. LEGAL F. 193, 212-13 (citing a study of client complaints showing that, in one jurisdiction during 1970, only 13 of 2031 client complaints alleged a conflict of interest); cf. 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL RULES OF PROFESSIONAL CONDUCT § 1.7:103, at 227-28 (1998 Supp.) (noting that professional discipline for engaging in conflicted representation has been rare but predicting an increase in disciplinary activity).
206. See, e.g., F. Raymond Marks & Darlene Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation?, 1974 U. ILL. LEGAL F. 193, 212-13 (citing a study of client complaints showing that, in one jurisdiction during 1970, only 13 of 2031 client complaints alleged a conflict of interest); cf. 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL RULES OF PROFESSIONAL CONDUCT § 1.7:103, at 227-28 (1998 Supp.) (noting that professional discipline for engaging in conflicted representation has been rare but predicting an increase in disciplinary activity).
207. Of course, some codes do state when lawyers must reject particular client waivers, but that is not the same as informing lawyers when they should accept a case that a client may offer them. See supra text accompanying notes 136-140.
208. As I have discussed at length elsewhere, there are categories of specialized practice that give rise to special ethical dilemmas. See Fred C. Zacharias, Reconceptualizing Ethical Roles, 65 GEO. WASH. L. REV. 169, 190-204 (1997). For example, the conflict-of-interest issues that arise in elder law and corporate situations often seem distinct from those that arise in ordinary practice, both in their nature and frequency. See id. at 195-96 (describing special considerations that distinguish elder law and corporate practice).
209. For example, there may be reasons to distinguish between solo or small-firm practitioners and large-firm lawyers, either because of the nature of the lawyers' resources or the types of clients they represent. See id. at 188 (distinguishing various settings of practice for the purposes of writing professional rules). The difficulty in identifying conflicts of interests in large firms is magnified because a firm's lawyers may not be aware of the past and present clients represented by other lawyers in the firm. They may not be familiar with the legal issues implicated by the cases of other firm lawyers. At the same time, mechanisms for screening conflicts in large firms may be relatively sophisticated. It may also be possible to separate conflicted lawyers within a firm through a "Chinese Wall" - something that is not possible for solo or small-firm practitioners.
210. This Essay has already noted some characteristics that distinguish clients in small towns and those who do business in specialized fields. See supra text accompanying note 42. The nature of particular types of clients - particularly their mental capacity and sophistication - is another important factor in evaluating the validity of waivers. Rulemakers might consider drafting specialized conflict and waiver rules for particular types of clients. See Zacharias, supra note 156, at 186-90 (discussing the possibility of categorizing ethical roles according to a lawyer's clientele).
211. See ABA Starts "Ethics 2000 " Project for Sweeping Review of Rules, ABA/BNA LAWYERS' MANUAL OF PROFESSIONAL CONDUCT: CURRENT REPORTS (May 28, 1997), at 140 (describing the goal of the Ethics 2000 project as "undertak[ing] an in-depth review and assessment of ethics rules during the final years of the second millennium").
212. The recently-adopted Restatement presented an opportunity for reform. As promulgated, however, the proposed Restatement purports to restate existing state law and, with some clarifying wrinkles, it does just that. See RESTATEMENT, supra note 25, §§ 201-02, 206, 209-11. See generally Nancy J. Moore, Restating the Law of Lawyer Conflicts, 10 GEO. J. LEGAL ETHICS 541 (1997) (analyzing the proposed Restatement provisions relating to conflicts of interest). In one respect, the Restatement's clarification foreshadows this Essay's proposals. Section 202(2) directly forbids representation with respect to certain nonwaivable conflicts, including situations in which "one client will assert a claim against the other in the same litigation" or in which "it is not reasonably likely that the lawyer will be able to provide adequate representation." RESTATEMENT, supra note 25, § 202(2). This provision has the virtue of highlighting the existence of nonwaivable conflict situations. But to a large extent, the provision continues the Model Rules' failure to tailor its rule adequately to the reasons why consent should not be honored.
213. I have suggested elsewhere the possibility of federalizing legal ethics. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335 (1994). The main difficulties recurring with respect to conflicts-of-interest rules, however, do not relate to disuniformity in state regulation or to peculiarly federal issues. Thus, congressional legislation would not seem to be the most appropriate means of addressing the issues discussed in this Essay.
214. See supra text accompanying notes 108-111.
215. See supra text accompanying notes 111 -120.