In re Wagle: Generic Conflict Waivers Are Insufficient, and Seeking a Waiver Does Not Establish a “Knowing” KRPC 1.7 Violation

Introduction

This commentary analyzes the Kansas Supreme Court’s disciplinary decision in In re Wagle, No. 129,013 (Kan. Nov. 14, 2025), an original proceeding involving a criminal defense attorney who concurrently represented a boyfriend and girlfriend in a cluster of interrelated criminal cases. The matter centers on Kansas Rule of Professional Conduct 1.7 (concurrent conflicts of interest), the sufficiency of written conflict waivers, and the mental state required to classify a conflict violation as “knowing” versus “negligent.”

Two features of the opinion are especially noteworthy:

The Court clarifies that the mere act of seeking or obtaining a conflict waiver does not, by itself, prove a lawyer “knew” they were violating the duty of conflict-free representation. On the record presented, the Court found a negligent—rather than knowing—violation of KRPC 1.7.
The Court underscores that generic, non-specific conflict waivers that fail to identify each affected matter and the material, reasonably foreseeable adverse consequences do not satisfy KRPC 1.7’s informed-consent requirement.

Although the disciplinary panel had deemed the violation “knowing,” the Supreme Court modified that mental-state finding but nevertheless imposed a published censure, declining to remand for an informal admonition absent extraordinary circumstances.

Background

Respondent M. Steven Wagle, a Wichita criminal defense attorney licensed since 1986, was appointed in 2020 to represent B.A. in Sedgwick County cases stemming from alleged sex crimes and repeated violations of no-contact orders concerning J.O. and others. In mid-2020, Wagle also undertook representation of J.O., B.A.’s girlfriend, on an identity theft charge that arose from her efforts to help B.A. violate a no-contact order. In those interlocking prosecutions, B.A. and J.O. were alternately listed as state witnesses against each other, and a later plea offer to J.O. expressly required her to testify against B.A.

Aware of potential conflicts, Wagle obtained brief one-page “waivers” from both clients. The waivers named some, but not all, affected cases and did not specifically describe the key risk that ultimately materialized—J.O. being required to testify against B.A. After the prosecutor flagged the conflict, Wagle moved to withdraw from J.O.’s case, which the court granted. J.O. received the same plea offer through new counsel.

Summary of the Opinion

The Kansas Board for Discipline of Attorneys’ hearing panel found a violation of KRPC 1.7 and recommended published censure. The panel also concluded that respondent “knew” he was violating his duty because he recognized a conflict and sought waivers.

The Kansas Supreme Court:

Accepted the violation of KRPC 1.7 by clear and convincing evidence.
Held that the written “waivers” were insufficient under KRPC 1.7’s informed-consent standards because they were broad, non-specific, omitted multiple affected matters, and failed to disclose material, reasonably foreseeable adverse effects (notably, that J.O. could be required to testify against B.A.).
Rejected the panel’s legal conclusion that respondent “knew” he was violating the duty of conflict-free representation, clarifying that merely seeking a waiver does not establish a knowing mental state. On this record, the Court found a negligent violation.
Imposed a published censure rather than informally admonishing respondent, explaining that an admonition at this stage would require remand to the Disciplinary Administrator, a step reserved for extraordinary circumstances not present here.
Assessed costs against respondent and ordered publication in the Kansas Reports.

Analysis

Precedents and Authorities Cited

KRPC 1.7 (Concurrent Conflicts of Interest): The Court quoted the rule’s basic prohibitions and its four-part exception requiring, among other things, the lawyer’s reasonable belief in their ability to provide competent and diligent representation to each client and each affected client’s informed consent confirmed in writing.
KRPC 1.7 Comments:
- Comment [6] (direct adversity): a conflict may arise when a lawyer must cross-examine a client appearing as a witness in another client’s matter, particularly where the testimony will be damaging.
- Comment [8] (material limitation): even without direct adverseness, a conflict exists if there is a significant risk that the lawyer’s ability to recommend or pursue appropriate action will be materially limited.
- Comment [17] (informed consent): requires awareness of relevant circumstances and the material, reasonably foreseeable ways the conflict could adversely affect the client’s interests.
Burden of Proof: Clear and convincing evidence standard reaffirmed (In re Spiegel, 315 Kan. 143, 504 P.3d 1057 [2022]; In re Murphy, 312 Kan. 203, 473 P.3d 886 [2020]).
Deference and Review: Findings unchallenged by exceptions are deemed admitted (Supreme Court Rule 228[g][1], [2]). But the Court independently reviews legal conclusions for support in substantial competent evidence (In re Valdez, 321 Kan. 198, 574 P.3d 835 [2025]).
Disciplinary Recommendations: The Court is not bound by the Administrator’s or panel’s recommendation (In re Biscanin, 305 Kan. 1212, 390 P.3d 886 [2017]); it may nonetheless agree (In re Long, 315 Kan. 842, 511 P.3d 952 [2022]).
ABA Standards for Imposing Lawyer Sanctions:
- Standard 4.33 (reprimand/censure appropriate for negligent conflict causing injury or potential injury).
- Standard 4.34 (admonition appropriate for an isolated negligent conflict causing little or no actual or potential injury).
- Standards 9.22 and 9.32 (aggravating and mitigating factors).
Remand for Admonition is Extraordinary: The Court cited In re Todd, 308 Kan. 133, 418 P.3d 1265 (2018), where a remand was justified by exceptional health-related circumstances; by contrast, no extraordinary facts warranted remand here.
Prior Discipline: The Court referenced respondent’s 2003 suspension (In re Wagle, 275 Kan. 63, 60 P.3d 920 [2003]) and earlier informal admonitions, recognizing them as reportable disciplinary history.

Legal Reasoning

The Court’s reasoning proceeds in three steps: (1) conflict identification, (2) waiver sufficiency, and (3) discipline calibrated to mental state and procedural posture.

1) Conflict Identification under KRPC 1.7

The dual representations were “directly adverse” and, independently, presented a “material limitation” conflict. B.A. and J.O. were alternately state witnesses against each other in matters arising from the same factual nucleus (violations of no-contact orders and related acts). The prosecutor issued a plea offer to J.O. that conditioned leniency on testimony against B.A.—textbook direct adversity and, at minimum, a significant risk of materially limiting the lawyer’s ability to advise and act for each client. The panel even questioned whether any waiver could have sufficed given the breadth and immediacy of the adversity, though the Supreme Court did not need to resolve that non-consentability question because the waivers actually obtained failed KRPC 1.7’s informed-consent requirements.

2) Waiver Sufficiency: Informed Consent Requires Specificity

KRPC 1.7(b) allows representation despite a concurrent conflict only if four conditions are met, including informed consent “confirmed in writing.” The Court emphasized Comment [17]: informed consent demands that each client be made aware of the relevant circumstances and the material, reasonably foreseeable ways the conflict could adversely affect their interests.

The waivers here were deficient because they:

Were generic in language and did not explain the concrete risks that could materialize—most importantly, that one client could be required to testify against the other as a condition of a plea.
Did not enumerate all affected cases. One waiver listed only two case numbers and contained edits suggestive of repurposing; other interrelated cases were omitted.
Did not match the sophistication and immediacy of the conflicts presented by multi-case, cross-witness criminal litigation between intimate partners.

On these facts, the written acknowledgments did not satisfy the “informed” component of consent, and thus the KRPC 1.7(b) exception could not be invoked to continue dual representation.

3) Mental State and Sanction: Negligence, Not Knowledge; Published Censure

The panel’s conclusion that respondent “knew” he was violating his duty rested on the fact that he recognized a conflict and sought waivers. The Supreme Court rejected that as a matter of law: seeking a waiver is not, by itself, substantial competent evidence of a knowing violation of KRPC 1.7. The record did not make it “highly probable” that respondent knew the waivers would be deficient. Accordingly, the Court reclassified the conduct as negligent.

Under the ABA Standards:

Standard 4.33 supports a public reprimand (published censure) for negligent conflicts causing injury or potential injury.
Standard 4.34 supports an admonition for an isolated negligent conflict with little or no actual or potential injury.

The Court acknowledged that an admonition could fit in theory but declined to remand for that outcome because admonitions at this posture must be imposed by the Disciplinary Administrator and are reserved for extraordinary circumstances. The Court found none here and therefore imposed a published censure consistent with the panel’s and Administrator’s recommendations.

Aggravating and Mitigating Factors

The Court recited the panel’s aggravators as including prior disciplinary offenses, multiple offenses, and substantial experience in practice. Mitigation included cooperation and stipulations, good character and reputation (including letters from four sitting district judges), absence of dishonest or selfish motive, and remoteness in time and nature of prior discipline. The Court also noted there was only potential—rather than actual—injury to J.O., who ultimately received the same plea through successor counsel.

Impact and Implications

A. Conflict Waivers Must Be Case-Specific and Risk-Specific

Kansas lawyers should expect heightened scrutiny of conflict waivers under KRPC 1.7. Generic forms—even if signed—will be vulnerable where they fail to:

Identify each affected matter (by case number where pertinent).
Describe the relevant circumstances linking the representations (e.g., shared fact pattern; cross-witness listing; plea dependencies).
Explain material and reasonably foreseeable adverse effects (e.g., the likelihood that one client will be required to testify against the other; limits on negotiation strategies; constraints on cross-examination).
Reflect the lawyer’s reasoned, contemporaneous assessment that competent and diligent representation is still possible for each affected client.

B. Proof of “Knowing” Violations Requires More than the Existence of a Waiver

Disciplinary prosecutors must marshal evidence showing not merely that a lawyer recognized a conflict and sought a waiver, but that the lawyer knew the waiver was inadequate or knew the representation could not lawfully proceed under 1.7(b). The Court’s clarification raises the evidentiary bar for classifying a violation as “knowing.”

C. Dual Representation in Interlocking Criminal Matters Is Fraught—and Often Functionally Non-Consentable

Where intimate partners are alternately witnesses against one another in intertwined cases, the practical risks of direct adversity and material limitation are acute. Even when theoretically consentable under KRPC 1.7(b), prudent counsel should generally decline one of the representations at the outset. The panel’s observation that it “questions whether any waiver could be sufficient” in these circumstances is a cautionary signal; the Supreme Court did not reach that ultimate conclusion but confirmed the high specificity required for any purported consent.

D. Sanctioning Practice: Admonition Remands Are Exceptional

Even when negligence and minimal harm might favor an admonition under ABA Standard 4.34, the Court will rarely remand for that disposition. In re Todd shows the level of extraordinary circumstances (e.g., severe health impediments) that may justify remand. Practitioners should not expect remands for admonition absent similarly compelling equities.

E. Practical Compliance Guidance

Adopt a conflicts protocol that flags cross-witness scenarios and intertwined criminal matters involving romantic partners or co-participants.
If you contemplate dual representation:
- Document all pending and foreseeable matters by case number and posture.
- Detail specific risks, including the probability of compelled testimony or cooperation, mutual plea-tradeoffs, and constraints on strategy (e.g., limits on cross-examination).
- Assess, in writing, whether you can competently and diligently represent each client; if not, decline or withdraw.
- Avoid boilerplate. Tailor each disclosure and consent to the facts and to each client’s role and incentives.
When a prosecutor signals a potential conflict—especially via a plea requiring one client to testify against another—promptly reevaluate, advise clients, and if necessary, withdraw before any substantive prejudice accrues.

Complex Concepts Simplified

Concurrent conflict of interest (KRPC 1.7): Exists when a lawyer’s representation of one current client is directly adverse to another current client, or there is a substantial risk the lawyer’s representation will be materially limited by responsibilities to another client or by the lawyer’s own interests.
Direct adversity: The clients’ interests are opposed in the same or closely related matters (e.g., one client’s plea requires testifying against the other).
Material limitation: The lawyer’s ability to advise or act for a client is significantly constrained by duties to another client (e.g., the lawyer can’t recommend cooperation or a plea strategy for one client without harming the other).
Informed consent, confirmed in writing: Each client must understand the relevant facts and the material, reasonably foreseeable ways the conflict could harm them, and must consent in a writing that reflects those specifics.
Knowing vs. negligent violation: A knowing violation requires proof the lawyer understood they were breaching the duty; negligence involves a failure to meet the standard of care without proof of such awareness. The Court held that simply seeking a waiver does not, by itself, prove a knowing violation.
Published censure vs. informal admonition: A published censure (public reprimand) is a public sanction imposed by the Supreme Court. An informal admonition is a lesser public discipline typically imposed by the Disciplinary Administrator and not by the Court at the appellate stage, absent remand in extraordinary cases.
Clear and convincing evidence: A high evidentiary standard requiring the fact-finder to be highly persuaded of the truth of the allegations. Used in attorney discipline to prove violations.

Conclusion

In re Wagle delivers two important clarifications to Kansas conflict-of-interest doctrine and discipline practice. First, it underscores that conflict waivers must be specific: they should identify every affected matter and candidly describe the concrete, reasonably foreseeable risks, such as the prospect of one client testifying against another. Generic statements and incomplete case listings do not satisfy KRPC 1.7’s demand for informed consent.

Second, the decision refines the proof needed to establish a “knowing” violation of KRPC 1.7. The Court rejected the notion that attempting to obtain a waiver, standing alone, demonstrates a knowing breach of the duty of conflict-free representation. On the record before it, the Court found a negligent violation and imposed a published censure—both to reflect the seriousness of the conflict and because, procedurally, a remand for informal admonition is reserved for truly extraordinary circumstances.

For practitioners, the message is plain: do not rely on boilerplate waivers in complex, intertwined criminal matters. Where cross-witness dynamics or plea dependencies loom, dual representation is often untenable in practice. If a lawyer nevertheless proceeds, only highly particularized disclosures and client consents—paired with a defensible belief in the ability to represent each client competently and diligently—will satisfy KRPC 1.7. And should a conflict materialize midstream, prompt withdrawal and transition to conflict-free counsel remains the safest path.