Advance Waiver of Conflicts
Richard W. Painter
University of Minnesota Law School
Georgetown Journal of Legal Ethics, Vol. 8, P. 289, Winter 2000
This article points out that existing ethics rules poorly accommodate ex-ante contracting through "advance consent." Because the words "consent after consultation" suggest that the consenting client should know all or most of the relevant facts about a conflict, advance consents may not even be enforceable. In almost all cases, lawyers thus ask their clients for conflict waivers only after the second client seeks representation, when most relevant facts about the conflict are known. Rarely, is a waiver contracted for in advance. The result is a large amount of litigation over conflicts issues at the expense of lawyers and their clients who could have avoided misunderstandings in their retainer agreement.
This article suggests that the Model Rules should permit advance waivers in some specific instances. First, the Model Rules should allow a lawyer and a client independently represented by counsel (including in-house counsel) to make a binding agreement at the outset of the representation, or at any time during the representation, with respect to the important elements of a potential conflict:
(i) a definition of who the "client" is in the representation;
(ii) a definition of what is and is not an "adverse" interest;
(iii) the time when a representation ends (after which conflicts are evaluated as former client conflicts instead of current conflicts);
(iv) a time after termination of a representation when former client conflicts rules shall cease to apply;
(v) an agreement that conflicts between two current clients shall only be grounds for disqualification if the matters are "substantially related" (a criterion usually applied only to former client conflicts);
(vi) a definition of what is and is not a "substantially related" matter; and
(vii) an agreement whereby the client consents in advance to a specific type of conflict.
In addition, lawyers and clients should be allowed to agree ex-ante that imputed disqualification of a law firm will be avoided if the lawyers involved in a matter are screened from any participation in another matter to which the conflicts rules would otherwise apply. The comment to Model Rule 1.10 should state that lawyers and clients can agree ex-ante on what the appropriate screening procedures will be.
Finally, this article proposes that the comments to Model Rules 1.7 and 1.9 should point out that advance waivers do not allow lawyers to disclose confidential client information in violation of Model Rule 1.6. The comments, however, should also state that, once a conflicting representation is consented to, the client giving consent (and any other complaining third party) will have the burden of showing specific facts establishing that the lawyer has misused confidential information in order for the lawyer to be disqualified or sanctioned for her conduct. Otherwise, specious claims of misuse of confidential information would eviscerate the advance conflict waiver. In addition, clients should be allowed to condition advance waivers on specific undertakings by the law firm, such as an undertaking to return or otherwise dispose of, at the conclusion of the firm's representation of the client, all relevant files, including internal law firm memoranda and computer records, concerning the matter.
JEL Classification: K0, K4, K40
Date posted: December 23, 2000
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