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St. Mary's Law Journal

Abstract

Conflicts of interest among clients present some of the most pervasive ethical problems lawyers face. In many instances the affected clients may consent to a conflict. Under the ABA Model Rules of Professional Conduct, for consent to be effective, it must be “informed” and must be “confirmed in writing.” Informed consent to such conflict is often referred to as a “waiver” of the conflict. Many law firms have begun seeking “general advance waivers” of conflicts of interest. The ethical rules did not deal with the issue of advance waiver until 2002. Both Model Rules and the Restatement of the Law Governing Lawyers now authorize the limited use of such waivers. An “advance” waiver of conflict is a waiver that is made as to conflicts of interest which may arise in the future but have not yet arisen. Under both the Model Rules and the Restatement, an important factor in determining validity of an advance waiver is whether it is general or specific, with general waiver being normally invalid. Advance waivers present one way in which firms can control the risk of disqualification as a result of conflicts of interest. While advance waivers serve an important purpose in protecting the interests of clients in retaining counsel of their choice, they can also be abused due to a firm’s economic interest in minimizing disqualifying conflicts. The current standards governing advance waivers are inconsistent, incomplete, and vague. Additionally, advance waivers must meet three requirements. First, waivers should be limited to the conflicts from the specific matter. Second, waivers should not apply to substantially related matters, unless the conflict arises from jointly represented clients. Third, waivers should be preceded by disclosures covering reasons, scope and disadvantages. If the waiver meets these requirements, courts should adopt a rebuttable presumption the waiver is valid.

Publisher

St. Mary's University School of Law

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