Thursday, October 14, 2010

Articles: Lawyer Lateral Movement, Conflicts, Ethical Screens and Advance Waivers

A reader pointed out several interesting articles published in the Boston Bar Journal:
  • In: "Lateral Movement of Lawyers in Massachusetts -- Conflicts, O’Donnell, and the Future Under Amended ABA Model Rule 1.10," several ethics and loss prevention lawyers at Holland & Knight comment on whether that state should adopt Model Rule 1.10 and broaden screening latitude. While they express some concerns with the Model Rule, they conclude: "Despite its problems, amended Model Rule 1.10 would be an improvement over the current Massachusetts Rule and the outcome in O’Donnell. The bright-line approach of amended Model Rule 1.10, which allows screens to be erected in most cases of lateral lawyer movement, is preferable to the uncertainty created by the Massachusetts 'substantial involvement' and 'substantial material information' exceptions. Massachusetts’ adoption of amended Model Rule 1.10 would likely prevent law firm disqualification in the majority of cases involving private-sector lateral lawyer movement, including in 'close' cases like O’Donnell."
  • In: "Advance Conflict Waivers: Will They Work For You?" representatives from Wilmer Hale explore how waivers can benefit firms and the clients they serve: "Given the growing number of firms providing legal services in a wide variety of practice areas, advance waivers will become an even more essential and standard practice. When properly drafted, and fully and candidly explained, they will provide important benefits to firms and their clients."
  • In response to that article, a representative from Harvard University wrote a letter to the Journal, challenging the notion that waivers benefit clients: "It may be self evident, but is worth emphasizing, that the premise of this language is that there is in fact a conflict which, absent the client’s consent, would prevent the lawyer from representing one or both of the adverse parties. In plain English, this waiver is intended to permit the lawyer to undertake work that could otherwise be prohibited.... Blanket waivers help protect firms from the consequences of missing or not recognizing conflicts. The other purpose, of course, is that advance waivers reduce an important obstacle to taking on new business."

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