March 31, 2016
Can Advance Conflict Waivers Ever Be Informed Consent?
Recent examples in California courts have demonstrated the limits of advance conflict waivers and the effects of these limits. Needless to say, finding out that an advance conflict waiver is not effective to resolve a conflict can come as a shock, because it generally happens after-the-fact. Recent cases suggest that attorneys and firms who use advance conflict waivers should go back to the drawing board to evaluate how they are used and, more importantly, what they can accomplish and what they cannot.
Start at the beginning. California Rules of Professional Conduct Rule 3-310(C) provides that attorneys cannot represent clients with conflicting or potentially conflicting interests “without the informed written consent of each client.” Rule 3-310(A)(2) provides that “‘Informed written consent’ means the client’s or former client’s written agreement to the representation following written disclosure.” In general terms, an advance conflict waiver is a provision in an attorney-client fee agreement that notifies the client of the potential for conflicts and ostensibly gets the client to waive those potential conflicts in advance. But waiving potential conflicts in advance is the trick. Before a conflict arises, how can you adequately describe the circumstances of the conflict to a client so that the client can give informed consent? The answer is fairly straightforward: you can’t. This does not mean that advance conflict waivers are worthless, however.
Advance conflict waivers can serve an important cautionary and signaling function for clients, who may not know anything about conflicts when they hire you. These provisions do not absolve California attorneys of their obligations to disclose conflicts and to get informed consent when conflicts, or potential conflicts, arise. But if properly drafted, advance conflict provisions can be an effective notice to clients that conflicts may occur, creating a context for follow-up disclosures of conflicts if and when they do occur. Don’t throw out your advance conflict waivers. Just make sure they are properly drafted, and know that in any firm protocol for identifying and disclosing conflicts, advance conflict provisions are generally a beginning step in disclosing conflicts to clients and obtaining informed consent, not the end.
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