Tuesday, October 15, 2013

Report from New York Roundtable

Last week, we held a Risk Roundtable in New York City. Many thanks to Cravath, Swaine & Moore LLP for hosting. The event featured an engaging debate about recent case law affecting advanced waivers for conflicts. Drawing upon their analyses of the various opinions, our presenters then suggested strategies for composing waivers that would avoid future litigation along with technologies to manage client and matter intake effectively. Kathryn Hume, who manages and moderates the Risk Program, sends this update:
  • Dan, I'm pleased to report back a successful New York Risk Roundtable. Cravath generously agreed to host a large and engaged group of risk and technology leaders. A special thanks to Jeff Franchetti, Cravath CIO, for his hospitality.
  • Roy Simon, Distinguished Emeritus Professor of Legal Ethics at Hofstra University, began the discussion by commenting upon McKesson vs Duane Morris (Georgia, 2006), Celgene vs KV Pharmaceutical Co. (NJ, 2008), GSI vs BabyCenter (NY, 2010), and Galderma vs. Actavis Mid-Atlantic (Texas, 2013). In his commentary, Roy elicited and analyzed multiple key issues:
    • How specifically should a request for an advanced waiver communicate the information, risks and alternatives of a potential future conflict in order to be defensible as having elicited the clients’ informed consent?
    • Should “blanket” waivers, open waivers that do not specify the types of matters (e.g. high-stakes IP litigation versus low-stakes transactional law) or clients, be admissible? What about for sophisticated clients, especially those with an experienced in-house counsel that firms can reasonably assume have the capacity to assess more opaque terms of engagement?  
    • Within complex corporate families (e.g. the McKesson group) is a well drafted provision defining the client as a specific, named entity (and excluding any parent, subsidiary, or other affiliate in the corporate family) equivalent to a broad advanced waiver provision from all other members of the corporate family?
  • Anthony Davis, Partner in Hinshaw and Culbertson’s Lawyers for the Profession Practice Group, continued the discussion by commenting upon Brigham Young vs. Pfizer (Utah, 2010) and Macy’s vs. JC Penny (NY, 2013). Anthony highlighted the following:
    • The need to specify whether a waiver affects all new matters, from existing as well as new clients, or simply new matters under the “continuing” representation of existing clients. 
    • The surprising provision in the Jones Day waiver for the JC Penny case that the client can “silently consent” to the conditions of the waiver by simply engaging the firms services, without ever actually signing a contract.
    • After analyzing the case law, Anthony highlighted the four key tasks a perfect new business intake system and process should accomplish: clearing conflicts of interest, informing future client selection strategy, vetting client financial reliability and inciting easy and accurate data input from lawyers and staff.
  • James Edwards, Intapp Solution Consultant, concluded the session by demonstrating how the Intapp Open software platform is architected and designed to address precisely these challenges, enabling law firms to update forms and processes on the fly to stay competitive and manage complex waivers from sophisticated clients effectively. 
Kathryn is hosting a session in Washington DC today, with remaining events set for Chicago, Los Angeles and San Francisco.

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