How to Complete a Conflict of Interest Waiver Form: Disclosure and Consent

A conflict of interest waiver form is the written record of a client’s informed consent to let a lawyer continue representing them despite a conflicting duty to another party. Under ABA Model Rule 1.7, a lawyer facing a concurrent conflict can only move forward after disclosing the conflict and getting each affected client’s informed consent, confirmed in writing.¹ The form is what captures that consent. Done well, it protects everyone; done lazily, it does nothing when challenged.

Confirm the Conflict Is Waivable Before Drafting

Not every conflict can be fixed with a signature. Rule 1.7(b) requires all four of the following before a client’s waiver is valid:¹

The lawyer reasonably believes they can still provide competent and diligent representation to every affected client.
The representation is not prohibited by law.
The lawyer is not representing one client asserting a claim against another client in the same litigation or tribunal proceeding.
Every affected client gives informed consent, confirmed in writing.

The third condition traps people. If two current clients sit on opposite sides of the same lawsuit, no waiver form rescues the situation. The lawyer picks one client or withdraws from both. Drafting a waiver for that scenario is wasted paper.

What the Form Needs to Contain

Sample waivers from state bars share a recognizable set of components.² Each exists for a reason, and skipping any of them weakens the document.

Identification of every party. Full legal names of each affected client plus the lawyer or firm. In a joint representation, name both clients. In a current-versus-new conflict, name both.

Description of the matter. A clear statement of the engagement that creates the overlap: the closing, the transaction, the estate plan, the litigation. Vague descriptions leave room for a later argument that the client never understood what they were consenting to.

Nature of the conflict. The specific way the lawyer’s duty to one client could collide with their duty to another. This is the heart of the document. A form that says only “a conflict may exist” without explaining how or why is unlikely to hold up.

Risks of proceeding. The concrete downsides for the client: that confidential information may become relevant across matters, that the lawyer may not be able to advocate as aggressively for one side, that the lawyer may have to withdraw from everyone if interests diverge.

Recommendation to seek independent advice. A statement encouraging each client to consult a separate lawyer before signing.²

Signature blocks. Lines for every affected client and the lawyer, with the date each person signs.

Most weak waivers break down in the description of the conflict and its risks. A form that quotes Rule 1.7 at the client without translating it into their actual situation does not demonstrate informed consent. Write the disclosure in language your client will understand.

What Informed Consent Requires in the Disclosure

Informed consent is more than a signature. Rule 1.0(e) defines it as the client’s agreement to a proposed course of action after the lawyer has provided “adequate information and explanation about the material risks of and reasonably available alternatives.”³ The comment adds that the lawyer must make reasonable efforts to ensure the client actually has information adequate to make an informed decision, including the advantages, disadvantages, and alternatives.⁴

For joint representation, the disclosure also has to cover how the arrangement affects loyalty, confidentiality, and attorney-client privilege. Comment 18 to Rule 1.7 says the client needs to understand “the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.”⁵ Spell out, for example, that information one co-client shares with the lawyer may not stay confidential from the other co-client, or that the lawyer may have to withdraw from both if the clients’ positions diverge.

The depth of explanation scales with the client. A publicly traded company with in-house counsel generally needs less walkthrough than an individual signing a waiver for the first time. A lawyer who skips the explanation and assumes the client already understands then carries the burden of proving that assumption if the waiver is ever challenged.⁴

Who Signs the Waiver

Every affected client has to sign, or give oral consent that the lawyer promptly confirms in a written transmittal. Rule 1.0(b) accepts either a document the client signs or a letter the lawyer sends memorializing the oral consent, delivered within a reasonable time.³ A signed form is always the stronger option because it ends any dispute about whether the client agreed.

An individual client has to have the mental capacity to understand the waiver and the authority to bind themselves. Significant distress, cognitive impairment, or coercion makes the consent unreliable and leaves it open to being set aside.

When the client is a corporation or other organization, the signer must be someone authorized to act on the entity’s behalf. Rule 1.13 treats the organization itself as the client, acting through its duly authorized constituents, so typically a CEO, general counsel, or officer designated by the board handles the signature. If the conflict involves the personal interests of the officer who would normally sign, Rule 1.13(g) requires consent from a different appropriate official or the shareholders instead.⁶

Former-Client Conflicts Use a Different Waiver

A conflict does not disappear when the representation ends. Rule 1.9 bars a lawyer from taking on a new client in the same or a substantially related matter where the new client’s interests are materially adverse to a former client, unless the former client gives informed consent, confirmed in writing.⁷ The waiver form looks similar to a current-client waiver but addresses a different risk: the lawyer’s knowledge of confidential information from the earlier representation that could disadvantage the former client if used in the new matter.

Rule 1.9 also catches lawyers who switch firms. If the previous firm represented a client whose interests are now adverse, the lawyer cannot handle that matter at the new firm without the former client’s written consent, but only if the lawyer actually acquired confidential information material to the new matter.⁷ In either situation, the waiver has to specifically address what the lawyer learned, how it could be relevant, and why the former client’s interests remain protected.

Advance Waivers for Conflicts That Haven’t Happened Yet

Some engagement letters include a waiver covering future conflicts, before anyone knows what those conflicts will look like. Their enforceability depends on the detail.

Comment 22 to Rule 1.7 sets the standard: effectiveness “is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.” A waiver describing specific types of future conflicts the client is likely to encounter is more likely to hold than a blanket consent. The comment is direct that a “general and open-ended” advance waiver “ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.”⁵

Client sophistication matters. ABA Formal Opinion 05-436 notes that “general and open-ended consent is more likely to be effective when given by a client that is an experienced user of legal services, particularly if, for example, the client is independently represented by other counsel in giving consent.”⁸

One hard limit: an advance waiver cannot substitute for disclosing a conflict the lawyer already knows about. The California Supreme Court held in Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co. that a firm’s failure to disclose a known, existing conflict rendered its engagement agreement, including the advance waiver, unenforceable as against public policy.⁹ If you know about the conflict today, get a specific waiver today.

Clients Can Revoke a Signed Waiver

Comment 21 to Rule 1.7 is explicit that “a client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time.”⁵ The harder question is what happens to the other client after revocation.

Whether the lawyer also has to withdraw from the remaining client depends on the nature of the conflict, whether the revoking client had a good reason such as a material change in circumstances, the reasonable expectations of the other client, and whether the lawyer or the other client would suffer material detriment from a forced withdrawal.⁵ If the lawyer has already invested significant time, received confidential information under the original consent, or turned down other work in reliance on the arrangement, a revocation without good reason may not force the lawyer off the other case. Courts can still weigh the equities independently.

Distributing and Storing the Executed Form

Once everyone has signed, send a fully executed copy to each client. Secure electronic signature platforms create a built-in audit trail showing when each party received and reviewed the document, which helps if anyone later claims they never saw the waiver. Physical copies should go out by a delivery method that confirms receipt.

Keep the signed original in the client file, not in a separate administrative folder where it could be missed during future conflict checks. Many firms retain waivers for at least seven years after the matter closes, which generally aligns with legal malpractice limitations periods in most states. Store it securely, whether in a fireproof cabinet or an encrypted cloud system, and back up digital copies. The waiver may not be needed for years. When it is, not having it is indefensible.

1
American Bar Association. Model Rules of Professional Conduct – Rule 1.7 Conflict of Interest: Current Clients
2
State Bar of Nevada. Conflict of Interest Waiver Form
3
American Bar Association. Model Rules of Professional Conduct – Rule 1.0 Terminology
4
American Bar Association. Rule 1.0 Terminology – Comment
5
American Bar Association. Rule 1.7 Conflict of Interest: Current Clients – Comment
6
American Bar Association. Rule 1.13: Organization as Client
7
American Bar Association. Rule 1.9: Duties to Former Clients
8
American Bar Association. Formal Ethics Opinion 05-436
9
Justia Law. Sheppard, Mullin, Richter and Hampton, LLP v. J-M Manufacturing Co.