Wednesday, February 9, 2011

Conflicts Waivers - Evolving Perspectives on Delays and Disqualification

Last week, we pointed out a recent case where a court ruled that a delay in bringing a conflict-driven disqualification motion did not equate to a de-facto waiver. The judge noted that waivers must be explicit and intentional.

Now from the North Carolina Bar comes a proposed ethics opinion that revisits this topic and suggests that an appropriate line between reasonable and unreasonable delay could be drawn, in the appropriate context. See Proposed 2011 Formal Ethics Opinion 2: Former Client's Failure to Object to Conflict (thanks to Suzanne Lever, Assistant Ethics Counsel at North Carolina State Bar for forwarding a copy and hat tip to the NC Legal Ethics Blog).

The opinion sets out a possible scenario and notes that delays may be conscious and used for tactical advantage. And thus, while disqualification decisions should be made at the discretion of a judge, context and intention are important factors to consider:
  • "A lawyer must obtain the informed consent of a former client, pursuant to Rule 1.9(a), prior to representing a party who is adverse to the former client in the same or a substantially related matter. On occasion, however, a lawyer will fail to identify a former client conflict and will unintentionally represent an adverse party without obtaining the consent of the former client. If a former client delays lodging her objection to the representation of the adverse party by her former lawyer, does the former client's subsequent objection to the representation require the lawyer's withdrawal pursuant to Rule 1.9(a)?"
  • "Although delay will not be sufficient to constitute waiver in most cases, the following factors should be taken into consideration when evaluating whether a former client's failure timely to object to a new, adverse representation should constitute a de facto waiver of the right to object: (1) whether the lawyer's failure to identify the conflict of interest and bring it to the attention of the former client was unintentional; (2) whether the former client knew of the new representation and the adverse interest entailed; (3) the length of the delay in lodging an objection; (4) whether there was an opportunity to lodge an objection; (5) whether the former client was represented by counsel during the delay; (6) the reason the delay occurred; and (7) whether disqualification will result in substantial hardship for the new client. See Laws. Man. on Prof. Conduct (ABA/BNA) 51:234 (2002) (setting forth factors considered by courts when deciding whether to grant a delayed motion to disqualify).
  • "Moreover, there does not appear to be a justification for Wife's delay in lodging her objection other than to gain a tactical advantage by waiting until disqualification would work a substantial hardship on Husband."

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