An Important Fact About Informed Written Consent and Conflict Waivers

By: Lewis Brisbois' Labor & Employment Team

If you’ve ever worked with a labor & employment attorney, you may have heard them refer to “written consent” and “conflict waivers.” These terms can be confusing and this post will endeavor to explain what they mean and give suggestions on what you should do when dealing faced with them in your business.

The following is a common scenario: A plaintiff threatens to file or has filed a lawsuit alleging discrimination, harassment, and related claims against an employer who retains an attorney. The plaintiff also alleges a harassment claim against his supervisor. The attorney retained by the employer is then informally authorized by the employer to also represent the supervisor.  This means the attorney will have two clients:  the supervisor and the company.

That attorney will then need to get informed consent and conflict waivers from both the company and the supervisor. If the attorney obtains the informed written consent of actual or potential conflict from the supervisor but does not get an informed written consent from the company, the attorney has made an error. All clients must provide the attorney an informed written consent.

As a threshold matter, the attorney must provide, in writing, to each of the parties involved, any potential conflicts that may arise through the double representation. The effectiveness of conflict waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.

Without a detailed written disclosure outlining the risks of a conflict waiver and a full acceptance by all parties of those conflicts, courts are likely to find a lack of informed written consent and disqualify the handling attorney. If you receive a written notice from your attorney, make sure you understand what risks you are waiving.

If in you are ever in doubt when reviewing a written conflict waiver from your attorney, don’t be afraid to ask questions. The attorney is there to help you understand your risks and what exactly you are waiving. The decision is entirely up to you. Ultimately, the issues of informed written consent and conflict waivers require a case-by-case assessment, with the clichéd attorney response ringing true: It depends.

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