Duty to Obtain Written Conflict of Interest Waivers

Ohio’s Rules of Professional Conduct, effective February 1, 2007, require Ohio lawyers to secure written confirmation of their clients’ waivers of conflicts of interest. See Prof. Cond. Rule 1.7. This new requirement raises the issue of what type of written waiver is sufficient to comport with a lawyer’s ethical obligations under the Rules.

• In order to be sufficient, a written conflict of interest waiver must indicate that the client has given “informed consent” to the conflict. See Prof. Cond. Rule 1.7(b)(2).

• In order to qualify as “informed,” consent must stem from the following:

  1. An understandable explanation of the different interests involved; and

  2. A clear explanation of the advantages of seeking independent legal advice; and

  3. A detailed explanation of the risks and disadvantages entailed in the waiver.

• The Rules of Professional Conduct do not require any particular form for written conflict of interest waivers. They only require that informed consent be “confirmed in writing.” See Prof. Cond. Rule 1.7(b)(2). In this context, the phrase “confirmed in writing” denotes “informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.” Prof. Cond. Rule 1.0(b).

This document has been prepared as a general reference for careful lawyers and their staff for informational purposes. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately, and possibly with involvement of legal counsel.

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