Wednesday, June 26, 2013

On Crafting Effective Advanced Conflicts Waivers


BNA's recent update highlights an article by the team at Hinshaw & Culbertson, well worth reading in full, for those interested in the topic. "A ‘Safe Harbor’ for Future Conflicts Waivers" --

  • "Galderma Laboratories, L.P. v. Actavis Mid Atlantic LLC, ___ F. Supp.2d ___, 2013 WL 655053, 29 Law. Man. Prof. Conduct 114 (N.D. Tex. Feb. 22, 2013), enforced a relatively short form future conflicts waiver given by a legally sophisticated business client after review by the client's in-house counsel. Whether this opinion is regarded as a step forward, a step back, or just marching in place,1 it raises the question of how much disclosure should clearly be “more than enough” for future conflicts waivers to pass muster in the absence of truly extraordinary circumstances. This article seeks to answer that question."
  • "As already noted, our goal is to present a letter that will be 'more than enough' for future waivers to be effective. We also want to stress that there is no pride of authorship here. What is important is the substance of the communication, not the specific words used."
  • "The court then analyzed whether this advance waiver gave enough information to support informed consent and whether the information was reasonably adequate for the particular client. The court effectively decided this case under the ABA Model Rules even though it took note of the fact that the Texas Rules of Professional Conduct do not require any informed consent for concurrent representations of adverse parties in unrelated matters."
  • "Internal Screening. In almost all instances, the lawyers at a firm who work for a client that is asked for a future conflicts waiver will not be the same lawyers who would expect to represent other clients in matters adverse to that client... It therefore is minimally burdensome for the law firm to guarantee or agree that the lawyers who work for a client from whom a waiver is being requested will not simultaneously work on any matter adverse to that client and will not share files or discuss their respective assignments with lawyers who do. Where practicable, this kind of voluntary screen should also include paralegals and support staff."
  • "Law firms are well advised to be clear about what they want and not to ask for more than they need. Based on our experience, one of the reasons in-house counsel sometimes reject future conflicts waiver letters is that they appear to be too open-ended or to go further than in-house counsel believe the law firm really needs. In such situations, 'half a loaf' may be a whole lot better than no loaf at all."

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