Friday, November 13, 2009

California Bar May Allow Advanced Conflict Waivers

As reported in today's Recorder, this weekend, the California State Bar is voting on 45 proposed changes to its Professional Rules of Conduct, including the allowance of advanced conflicts waivers. That’s the most controversial of several revisions proposed by a Special Commission that has been working for several years and issued this latest series of recommendations.


Over 1000 pages of comments on this and other changes have been submitted by California lawyers. Highlights of the advanced waiver debate:

• "The rules are supposed to protect clients, not lawyers," Richard Zitrin, an ethics expert and adjunct professor at Hastings College of the Law, said Wednesday. "This protects lawyers, not clients."

• “Zitrin, of Zitrin & Frassetto, authored last year's letter signed by 12 other law professors opposed to the waiver proposal, and he followed up Tuesday by sending a letter of his own in which he called the idea “a monumentally inappropriate and grossly flawed standard.’”

As the Commission’s report notes, current California rules are silent on the issue of advanced waivers. Furthermore industry data, such as the Law Firm Risk Survey, [LINK] suggests that the practice is growing across the industry as a whole. It will be interesting to see how this issue resolves. Stay tuned…

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