Wednesday, March 20, 2013

Advance Conflict Waivers: Opinions & News

A few interesting waiver related stories in the news:

"Advance Conflicts Waiver in Retainer Allows Firm to Represent One Client Against Another" --
  • "A general, open-ended advance waiver of future conflicts in a law firm's retainer agreement with a sophisticated client represented by in-house counsel makes it permissible for the firm to represent the client's opponent in unrelated litigation, the U.S. District Court for the Northern District of Texas concluded Feb. 22, denying a disqualification motion (Galderma Laboratories LP v. Actavis Mid Atlantic LLC, N.D. Tex., No. 3:12-cv-2038-K, 2/22/13)."
  • "Three types of disclosure by the law firm support a finding that the broad waiver language in the engagement letter provided enough information to allow the client to provide informed consent, he ruled."
  • "In analyzing the conflicts issue, Kinkeade chose to apply the national standards as embodied in the Model Rules, which prohibit lawyers from representing a current client's opponent even in unrelated matters except with the client's informed consent, rather than Texas's more permissive conflicts rules, which allow firms to oppose current clients in most unrelated matters without having to obtain the client's informed consent."
"It’s Not Easy to Limit Representation So That Another Client Will Waive Conflict" --
  • "Outside counsel for a corporate client may not freely go along with restrictions that the company wants to impose as a condition of waiving conflicts of interest involving the lawyer's other clients, according to a Jan. 28 opinion from the Michigan bar's ethics committee (Michigan State Bar Comm. on Professional and Judicial Ethics, Informal Op. RI-358, 1/28/13)."
  • "The lawyer must not agree to a limitation the corporate client demands if it would preclude her from disclosing to the other client information necessary to pursue the objectives of the representation, the committee made clear."
  • "The opinion sets out a multiple-step process for lawyers to follow in determining whether they can limit a prospective or current client's representation to accommodate another client's conditions for granting a conflict waiver."

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