Generally, there is some consensus that delay can be used to argue an implicit waiver, but where that line is drawn, and under what circumstances, remains up for debate. (See one recent example where delay was not enough to establish consent, and proposed changes in one jurisdiction to clarify matters.)
Now comes a decision, recently affirmed on appeal, that, at least in California, on a complex insurance litigation matter, two years is too long to wait:
- "In denying the motion, the judge said the insurer 'provides no explanation for why it waited for two years, after the conclusion of a lengthy trial in this case on liability, to move to disqualify plaintiff’s counsel, a counsel that has represented plaintiff from the inception of this case.'"
- "Flier, writing for the Court of Appeal, noted that California, like most—but not all—jurisdictions, permits a finding of implied waiver of attorney conflict based on lack of timely objection. California does, however, require that the delay 'be extreme or unreasonable before it operates as a waiver.'"
- "...the justice went on to say, the court must look not only at the length of time, but also at the stage of litigation and the complexity of the case."