Tuesday, October 14, 2014

Advance Conflict Waivers Causing Conflicts?


Interesting article in the Legal Intelligencer: "Some Conflict Waivers Are Rubbing GCs the Wrong Way" --
  • "General counsel who spoke to The Legal said they are increasingly seeing advance-waiver clauses in engagement letters from large law firms and rarely is it something they find acceptable. Advance waivers typically say in their most basic form that a law firm represents many clients in many industries and some of those clients may be adverse to the new client, but that the new client agrees to waive any future conflict with the understanding that the law firm will appropriately wall off any adverse matters from the new client's matters."
  • "QVC General Counsel Larry Hayes of West Chester, Pa., said almost every large firm in the United States has advance-waiver clauses. Whether he signs them depends on how he intends to use the firm's services. If it is a one-off matter, Hayes said he may agree to the engagement as drafted. But for a firm that QVC uses on a more regular basis, Hayes said he would be reluctant to sign such an agreement. Hayes said the use of such clauses doesn't do much to show a firm is interested in forming a long-term relationship."
  • "He chalked up the trend to growing law firms whose increased merger activity has created more cross-over clients and has made operating under the traditional conflict regiment more difficult. 'It's a different mentality I think with the more global law practice,' Hayes said.
  • "Since law departments have given less work to outside firms through either bringing it in-house or leveraging their outside spend across fewer firms, law firms have been forced to make up that revenue in other areas, increasing the chances for conflicts, Lincoln Financial Group General Counsel Adam G. Ciongoli said. He said his department has been asked for advance conflict waivers, often from larger firms, and simply won't agree to them. He said he questions the ethics of some of them."
  • "For Reading, Pa.-based Penske Truck Leasing General Counsel Michael Duff, granting traditional conflict-waiver requests as they arise is something he is quite willing to do. 'I feel pretty strongly that firms are entitled to earn a living and take on clients they want as long as they are not somebody specifically adverse to us,' Duff said. But advance waivers are a different story. 'That I won't do,' Duff said."
  • "Duff said he understands large firms don't want to be 'tied down' to seeking conflict waivers from him when he is only using the firm for one matter, but said he still wants the opportunity to evaluate the specific situation rather than give a blanket waiver."
  • "And Duff noted that GCs of technology or pharmaceutical companies may have a tougher view on conflicts because of the intellectual property issues at stake in their businesses."
  • "One issue Hayes said he sees more commonly on the international stage is large, global firms seeking waivers to represent more than one bidder in a transaction. The London office would represent one company in a bid while the Vienna office would represent another bidder, Hayes said as an example. That is an issue he said he is not comfortable with."

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