Wednesday, September 19, 2012

On Waivable Conflicts of Interest...

Hat tip to the Legal Ethics Forum for the pointer to a new article published in the Rutgers Law Review: "What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent."  From the abstract:
  • "Attorneys are frequently asked to represent more than one client in the same or related matters... Regardless of the setting, attorneys face the same challenge in deciding whether the conflict of interest posed by the joint representation can be waived by the clients."
  • "Under the Model Rules of Professional Conduct, the conflict of interest can be waived if (1) the clients provide knowing, informed consent to the joint representation, and (2) the attorney’s representation of the multiple clients will be competent..."
  • "In assessing whether the joint representation will be competent, however, the attorney encounters the enigma that has bedeviled practitioners, courts and commentators since the adoption of the Model Rules. A joint representation hampered by a conflict of interest materially limits the services that the attorney can perform for one client because of her competing duties to the other client. Thus, the challenge: how can we know which joint representations are competent (and therefore “consentable”) when nearly all suffer from material limits on the services that counsel can undertake for the clients?"

The articple proposes: "...a new test by which courts and practitioners can honor both the consent and competence elements of Model Rule 1.7(b)."
  • "In application, the proposed test calls for a rethinking of: the Supreme Court’s approach to conflict waiver in the criminal-defense setting; the analysis of courts that have considered conflict waivers in civil litigation and transaction matters; and the approach of attorneys who are charged with determining in the first instance whether to accede to client requests for a joint representation. Given the stakes for clients and counsel, it is time we understood why and when a conflict can be waived."

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