ETHICAL AND EFFECTIVE: ENFORCEABLE FUTURE CONFLICTS WAIVER

Transcription

1 ETHICAL AND EFFECTIVE: ENFORCEABLE FUTURE CONFLICTS WAIVER Presented by the American Bar Association Business Law Section, Center for Professional Responsibility, Section of Dispute Resolution, Division for Public Services, Senior Lawyers Division, Law Practice Division and Center for Professional Development

2 American Bar Association Center for Professional Development 321 North Clark Street, Suite 1900 Chicago, IL Submit a Question Visit to submit a question on the content of this course to program faculty. We ll route your question to a faculty member or qualified commentator in 2 business days. The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Business Law Section, Center for Professional Responsibility, Section of Dispute Resolution, Division for Public Services, Senior Lawyers Division, Law Practice Division or Center for Professional Development unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only American Bar Association. All rights reserved. This publication accompanies the audio program entitled Ethical and Effective: Enforceable Future Conflicts Waiver broadcast on September 13, 2016 (event code: CE1609EFC).

3 TABLE OF CONTENTS 1. Presentation Slides 2. Clearly Enforceable Future Conflicts Waivers Peter Jarvis, Allison Martin Rhodes and Calon Russell

4 ENFORCEABLE FUTURE CONFLICTS WAIVERS Presented by: William Freivogel, James Grogan and Calon Russell Moderated by: Peter Jarvis September 13, 2016 Copyright 2015 Holland & Knight LLP. All Rights Reserved Are there any types of present or future conflicts that don t need waivers?»multiple current/concurrent client?»current vs. former client?»client vs. attorney?»personal interest of lawyer vs. client?»business with clients?»other? The answer is no.

5 Why Do Conflicts Waiver Letters at All?» Because firm counsel makes us?» To avoid discipline?» To avoid fee disgorgement claims?» To avoid disqualification?» To avoid getting sued for damages?» Because it is a part of the duties of competence, communication and loyalty that I owe to all my clients and that I want to deliver to them? The answer is all of the above. Classification of Illinois Grievances-2015 The Top Five (Out of 5,648 Filings)

6 Conflicts of Interest Grievances (214 Grievances out of 5,648 Filings) Classification of Formal Disciplinary Charges (Out of 86 Formal Filings)

7 Final Disciplinary Orders (Out of 129 Sanction Cases) How Lawyers Practice Illinois 2016 Stats 8

8 2016 Sole Practitioner Malpractice Data sole Practitioner Succession Planning Data 10

9 Caveats»ON THE DEEP END: Not all conflicts can be waived and some theoretically waiveable conflicts may be too risky to attempt.»on THE SHALLOW END: If you think a conflict is too remote or theoretical to require a waiver, think of how it may look after the fact and with the benefit of hindsight.»in BETWEEN:» Don t ask for a current client conflicts waiver as such from someone you may want to claim is a former client.» No one has ever been disciplined for obtaining a conflicts waiver when it wasn t necessary to do so. When You Write a Conflicts Waiver Letter (or )»You are writing Exhibit A in defense of the discipline, disgorgement, disqualification and damages claim against you.» This applies to what you are (and are not) asking for consent to do.» It also applies to the factual and legal basis on which you are willing to proceed.» Less is not more. Lawyers far more often regret the documentation they don t have than regret the documentation they do.»you are allowing and encouraging your client to ask questions and to give informed consent.

10 The Definition of Materiality» If I disclose X in the letter, they won t consent.»if a client is going to be scared off by what you might put in a conflicts waiver letter, would you rather know that in advance or after the fact?»what is material as a matter of fact or law can change over time.» Sometimes waivers need to be updated.» Sometimes waiveable conflicts become non-waiveable. What Should be Included»What your firm or you are proposing to do and for whom.»the negatives--why the client should care.» Confidentiality risk.» Zealousness/competence & diligence risk.» Potential need to change counsel in the future.» Available client options.»the positives why the client may be willing to consent.» Potential for united front and/or savings if applicable.» Client desire for access to specific lawyers on specific projects.» Built-in safety features such as transaction-only versus litigation, internal screens, etc.»if it isn t written down, was it really said?

11 More on What Should be Included»An encouragement/acknowledgement of opportunity for the client to ask questions of you if the client has any, if any aspect of the letter seems unclear or if client is not satisfied that it fully understands the letter.»an encouragement/acknowledgement of right or opportunity for the client to seek independent counsel before deciding.» Not a guarantee but sometimes a very useful requirement.» Sometimes may even wish to be paid for.»your exit strategy.»client signature line and return, plus time for due consideration. So-Called Sophisticated Clients»Even if the client is sophisticated, the judge reviewing the disqualification motion, damage claim, etc., may not be.»when the chips are down, everyone can claim potted plant status.»business or personal sophistication versus sophistication/experience in dealing with lawyers in general and lawyer conflicts in particular.»if you think the facts or law on which the reasonableness or interpretation of a conflicts waiver depends are already known to the client, why not include them in the letter?»actual review versus access to independent counsel.

12 Advance Waivers in General»Are generally considered permissible in at least some circumstances, but...»won t work in situations in which present waivers won t work, so don t ask for what you can t get or would never use.»like their current waiver counterparts, will be construed against the drafter.»should be re-upped as new matters come in.»are subject to greater scrutiny and potentially greater burdens of disclosure precisely because they pertain to events that haven t happened yet. Specific Advance Waiver Topics» Limitations on scope of adverse work.» Only ask for what you need.» Limiting the waiver to specific types of matters your firm may wish to handle adversely to the waiving client.

13 Specific Advance Waiver Topics»Limitations on parties as to whom waiver exists.» Limiting the waiver to a specific client or clients whom the firm knows it will want to represent against the waiving client.» Limiting the waiver to a specific industry. Specific Advance Waiver Topics»Screening.» Is it necessary?» Is it advisable?» How is it implemented?» What do you do if the screen is breached?

14 Specific Advance Waiver Topics»Defining Unrelated Matters.» Finding a definition that avoids playbook issues.» Is using the phrase substantially related advisable? Potential Additional Bells and Whistles»In-house privilege agreements.»arbitration agreements.

15 Recent Authorities»Galderma Laboratories, LP v. Actavis Mid Atlantic LLC, 927 F.Supp.2d 390 (N.D. Tex. 2013).»Macy s, Inc. v. J.C. Penny Corp., Inc., 107 A.D.3d 616, 968 N.Y.S.2d 64 (1 st Dep t 2013).»New York State Ethics Op. 990 (2013). 23 Additional Authorities»Restatement (Third) of Law Governing Lawyers, Section 122 (2000).»William Freivogel, Freivogel on Conflicts, available at: See discussion on advance waivers at: C. Hazard, Jr., W. William Hodes and Peter R. Jarvis, The Law of Lawyering, 3d Edition (Aspen Publishing, 2000) (with annual supplements) (discussing advance waivers at section 10.9). 24

16 Thank You William Freivogel 999 N. Lake Shore Dr. Chicago, IL (312) James Grogan Illinois Attorney Registration and Disciplinary Commission One Prudential Plaza 130 East Randolph Drive Chicago, IL (312) Peter Jarvis Holland & Knight LLP 2300 U.S. Bancorp Tower 111 S.W. Fifth Ave. Portland, OR (503) Calon Russell Holland & Knight LLP 2300 U.S. Bancorp Tower 111 S.W. Fifth Ave. Portland, OR (503)