Feb. 11, 2026 – Is a lawyer required to seek waiver of a waivable conflict?

Question

I practice criminal law in a few small counties and therefore deal with conflicts of interest on a regular basis. Further, with few lawyers in the area, it is sometimes difficult to find lawyers willing and able to represent all defendants who are entitled to counsel.

I am usually quite cautious when it comes to conflicts but have occasionally sought the informed consent of clients to conflicts when I believed it was warranted under the circumstances.

Recently, a judge asked that I agree to represent the codefendant of a current client. I believed the conflict was subject to informed consent, but I have never been comfortable representing codefendants, and declined. The judge was unhappy and implied that I had a professional obligation to seek the informed consent of both codefendants, notwithstanding my reluctance to do so.

Are lawyers obligated to seek informed consent to a conflict when possible, even though the lawyer does not want to undertake the representation?

Answer

SCR 20:1.7(b) sets forth the standards for determining whether a current client conflict is subject to informed consent, and SCR 20:1.9(a) states former client conflicts are subject to the informed consent of the former client.

But the question asks us to assume that the conflict is subject to informed consent under SCR 20:1.7(b), so this article will not discuss the standards for analyzing whether a conflict is subject to informed consent.^[1]

The question here is whether there is an obligation under the disciplinary rules to seek such consent when it is permissible to do so.

The disciplinary rules and accompanying Wisconsin and ABA comments say nothing about this issue, but SCR 20:1.7(b) states that a lawyer “may” rather than “must” represent a client if the conditions for informed consent are met. It is thus literally true that no such obligation is stated in the rules.

There appears to be no case law on this issue, but there is guidance in the Restatement (Third) of the Law Governing Lawyers. Section 122, comment c. states in relevant part:

While a lawyer may elect to proceed with a conflicted representation after effective client consent as stated in this Section, a lawyer is not required to do so (compare § 14, Comment g (required representation by order of court)). A lawyer might be unwilling to accept the risk that a consenting client will later become disappointed with the representation and contend that the consent was defective, or the lawyer might conclude for other reasons that the lawyer's own interests do not warrant proceeding. In such an instance, the lawyer also may elect to withdraw if grounds permitting withdrawal are present under § 32. After withdrawal, a lawyer's ability to represent other clients is as described in § 121, Comment e.

This is consistent with the common law governing formation of the lawyer-client relationship, which generally gives lawyers the discretion to decline to represent clients without requiring a specific reason.^[2]

Thus, if a lawyer is free to decline to represent a client in the absence of a conflict, there is no reason to believe that a lawyer must seek informed consent to a conflict in order to represent a client solely because of the presence of a conflict.

Lawyers may have many reasons for not wishing to seek informed consent to a conflict when it is possible to do so as discussed on the comment to section 122. But the larger point is that lawyers are not required to seek informed consent and need not have reasons for declining to do so.

Endnotes

[1] There are other conflicts which may be subject to informed consent, see, e.g., SCR 20:1.18 and SCR 20:1.10. ↩

[2] See Restatement (Third) of the Law Governing Lawyers, section 14 comment b: “Lawyers generally are as free as other persons to decide with whom to deal, subject to generally applicable statutes such as those prohibiting certain kinds of discrimination. A lawyer, for example, may decline to undertake a representation that the lawyer finds inconvenient or repugnant.” An exception is when a court actually appoints a lawyer to represent a client, as opposed to simply asking if a lawyer is willing to accept an appointment as in the facts of the question. In such circumstances, a lawyer must have good cause to seek to avoid the appointment – see SCR 20:6.2. ↩