"Practical Advice for Documenting Conflict Waivers" - Published on Law360, author: Adams and Reese Partner Lucian Pera, November 18, 2014
Article summary: Is it possible to practice law anymore, no matter your practice setting, without drafting or reviewing waivers of conflicts of interest from time to time?
For those of us old enough to remember, back in the last century, there was actually a time before the ABA amended its Model Rules of Professional Conduct to require documentation of conflicts of interest waivers under the core rules for current and former client conflicts (Model Rules 1.7 and 1.9). Those days are gone.
Today, these core conflict rules in almost 40 American jurisdictions require that waivers be accompanied by some form of writing, whether signed by the client or not. Moreover, our ethics and claims partners, our insurers, and even corporate clients all relentlessly push us in the same direction, urging that any conflict waiver should be memorialized in writing. (I use the terms “consent” and “waiver” interchangeably here.)