Friday, November 4, 2016

Review of the state of the law on advanced conflicts waivers

IPethics & INsights has published two articles reviewing the current state of the law on advanced waivers.  Go here for part 1 and here for part 2.   Here is part of the introduction:
Some law firms try to avoid or limit their exposure to [conflicts of interests] by contracting with their clients to waive conflicts even before the facts giving rise to such conflicts are known either to the client or the law firm. Indeed, in large law firms that typically employ hundreds of lawyers in multiple offices around the globe, it is commonplace for their standard engagement agreements to include language in which the client agrees as part of the representation to waive in advance future conflicts of interest.
But are such “advanced waivers” ethical? It is one of the most vexing questions that has dogged law firms, regulators, and ethics counsel for years.
. . . . For lawyers who want a clear, definitive, black and white answer to the question of the legality and enforceability of advanced conflict waivers, unfortunately there is none. Ethics opinions and court rulings have created a patchwork of opinions. This lack of uniform treatment of advanced conflict waiver leads to unpredictability . . .  that most lawyers would rather avoid.

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