March 29, 2019

Ethics Rules and Recent Updates on Informed Consent to Waive Conflicts, Prospective Waivers, Screening Procedures, and Outside Counsel Guidelines

This presentation will address conflicts and waivers, including prospective or “advance” waivers, screening procedures, and “Outside Counsel Guidelines,” and will provide the practicing attorney with some practical tips along the way.  The presentation itself will likewise identify some recent updates and issues on this topic. 

One cannot appreciate the importance of specific conflict waivers, prospective or “advance waivers,” screening procedures, and in many instances, “Outside Counsel Guidelines,” without having a general command of the basic conflict of interest rules.  Under ABA Model Rule 1.7(a)(1), the lawyer cannot represent one client “directly adverse” to another current client of the lawyer or his/her law firm, even in an unrelated matter, without the informed consent, confirmed in writing, of each affected client. 

There is often a misconception among lawyers, particular transactional lawyers, as to what “directly adverse” means in this context.  “Directly adverse” conflicts do not necessarily have to arise in adversarial situations.  Rather, a “directly adverse” conflict arises in any situation where the lawyer’s representation of one client affects the legal rights or interests of another current client the lawyer or his/her law firm represents in some other matter.  Another common misconception about the conflict rules is the failure of lawyers to appreciate that, when dealing with two opposing current clients, the relatedness of the two matters is immaterial to the conflict analysis.  If the lawyer (or his/her law firm) represents the adverse party in any ongoing representation, the lawyer has a conflict.  The only way the lawyer can ethically undertake the adverse representation is for each of the affected clients to provide their informed consent, confirmed in writing.

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