Sunday, January 9, 2011

Advanced Conflicts Waivers -- More Discussion

Last October, we referenced a debate documented by the Boston Bar Journal concerning advanced conflicts waivers. Some believe advanced waivers benefits clients, some believe they reflect poorly on the legal industry (and some take a neutral point of view).

This month, the Journal continues the debate with a "pro" article by J. Charles Mokriski, currently of counsel at Proskauer, and formerly president of the Association of Professional Responsibility Lawyers. Mokriski argues that advanced waivers can benefit sohpisticated clients in situations where they would like to take advantage of a law firm's particular expertise, but that firm is hesitant to take on the matter, fearing future conflicts:
  • "Company X’s in-house lawyers conclude that it wants Law Firm A's appellate team... Firm A’s management tells its appellate lawyers that they can take on Company X’s appeal only if Company X will consent to future conflicts in unrelated matters in which Company X might be an adverse party. Company X, advised by its in-house counsel, and desperate to have Law Firm A’s appellate team in its corner, thinks this is a small price to pay to get that team working on its appeal. Should Company X and its in-house lawyers be unable to make this rational calculation and sign on to the consent? Does it afford no benefit to Company X?"
  • "So long as law firms do not routinely request advance conflict consents as a standard provision in all engagement letters, and so long as protections are built into advance consents by providing for mandatory ethical screens to protect confidential information, consents to future conflicts make sense in appropriate circumstances."

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