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Opinion 309
Advance Waivers of Conflicts of Interest
Advance waivers of conflicts of interest are not prohibited
by the Rules of Professional Conduct. Such waivers, however,
must comply with the overarching requirement of informed consent.
This means that the less specific the circumstances considered
by the client and the less sophisticated the client, the less
likely that an advance waiver will be valid. An advance waiver
given by a client having independent counsel (in-house or outside)
available to review such actions presumptively is valid, however,
even if general in character. Regardless of whether reviewed
by independent counsel, an advance waiver of conflicts will not
be valid where the two matters are substantially related to one
another.
Applicable Rules
- Rule 1.6 (Confidentiality of Information)
- Rule 1.7 (Conflict of Interest: General Rule)
- Rule 1.9 (Conflict of Interest: Former Client)
- Rule 1.10 (Imputed Disqualification: General Rule)
- Rule 2.2 (Intermediary)
Inquiry
The Ethics Committee has been asked whether
advance waivers of conflicts of interest1 are
permissible and, if so, whether there are requirements for such waivers
additional
to, or different from, those prescribed by Rules 1.7 and 1.9
for waivers generally.2 For
purposes of this opinion, the term “advance
waiver” means one that is granted before the conflict arises
and generally before its precise parameters (e.g., specific adverse
client, specific matter) are known.3
Discussion
The practice of law in this country has changed markedly in
the century since the ABA Canons of Professional Ethics were promulgated.
As was the case then, many lawyers practice in relatively small
firms, or as solo practitioners, in a single geographic location.
Increasingly, though, law firms have hundreds or even thousands
of lawyers, with multiple offices across the country and around
the globe. In such firms, individual partners or associates may
not even know one another, let alone the identities of the clients
their colleagues represent or the details of the matters their
colleagues are pursuing for such clients.
Moreover, the manner
in which clients—particularly commercial clients—use
lawyers is quite different than in the past. The days when a
large corporation would send most or all its legal business to
a single firm are gone. Today,
when corporate clients with multiple
operating divisions hire tens if not hundreds of law firms, the
idea that, for example, a corporation in Miami retaining the
Florida office of a national law firm to negotiate a lease should
preclude that firm’s New York office from taking an adverse
position in a totally unrelated commercial dispute against another
division of the same corporation strikes some as placing unreasonable
limitations on the opportunities of both clients and lawyers.
ABA Formal Op. 93-372 (1993) (“ABA Opinion”), in
American Bar Association, Formal and Informal Ethics Opinions,
1983-1998, at 167-68. This means, for example, that if the law
firm hypothesized in the ABA Opinion is looking out for its own
interests, it might decline the Miami representation. This in
turn would deny the client’s choice of a lawyer and would
reduce its potential choice of lawyers generally.
One alternative
is to let clients waive such conflicts if they view such waivers
as being in their interest. This approach has been recognized
as proper at least since the promulgation of the ABA Canons of
Ethics in 1908. See American Bar Association, Opinions on Professional
Ethics 22 (1967) (text of Canon 6); D.C. Code of Professional
Responsibility, Disciplinary R. 5-101(A) (1991 ed.).4 The
District of Columbia Rules of Professional Conduct (“D.C. Rules”)
prescribe the conflicts of interest that prevent a lawyer from
accepting and, in some instances, continuing, a representation.
D.C. Rules 1.7, 1.9. Where the conflict involves two current
clients, a lawyer5 may not advance
adverse positions on behalf of those clients in the same matter.
D.C. Rule 1.7(a). That conflict
is not waivable. See id., comments [2]-[4], [6].
Rule 1.7(b)
sets out four types of current-client conflicts that may be overcome
by a waiver. These are conflicts in which—
(1) in a matter
involving a specific party or parties, the position to be taken
by the lawyer’s client is adverse to the position taken
by another client of the lawyer in that matter, even though the
other client is represented by a different lawyer;
(2) the representation “will
be or is likely to be adversely affected by [the lawyer’s]
representation of another client”;
(3) “representation
of another client [of the lawyer] will be or is likely to be
adversely affected by such representation”;
or
(4) “the lawyer’s professional judgment on behalf
of the client will be or reasonably may be adversely affected
by the lawyer’s responsibilities to or interests in a third
party or the lawyer’s own financial, business, property,
or personal interests.”
Conflicts under subparagraphs (2),
(3), and (4) of Rule 1.7(b) sometimes are referred to as “punch-pulling” conflicts
because they address situations where a lawyer’s commitment
to the adverse client, or to some personal situation related
to the representation, arguably might tempt her to “pull
her punches” on behalf of her client. “The difference
between Rule 1.7(a) and Rule 1.7(b) is that in the former, the
lawyer is representing multiple interests in the same matter,
while in the latter the lawyer is representing a single interest,
but a [current] client of the lawyer who is represented by different
counsel has an interest adverse to that advanced by the lawyer.” D.C.
Rule 1.7, comment [1] (emphasis added).
Where a former client
is involved, a conflict exists only if the adversity arises in
a matter that is the same as, or substantially related to, the
matter in which the lawyer formerly represented that client.
D.C. Rule 1.9; see Brown v. D.C. Bd. of Zoning Adjustment, 486
A.2d 37 (D.C. 1984) (en banc); In re Sofaer, 728 A.2d 625 (D.C.
1999) (decided under Rule 1.11).
As noted above, a conflict under
Rule 1.7(a) may not be waived. See D.C. Rule 1.7, comments [2]-[4],
[6]. A conflict under Rule 1.7(b) may be waived, however, “if
each potentially affected client consents to such representation
after full disclosure of the existence and nature of the possible
conflict and the possible adverse consequences of such representation.” D.C.
Rule 1.7(c). “Consent is “a client’s uncoerced
assent to a proposed course of action, following consultation
with the lawyer regarding the matter in question.” D.C.
Rules, Terminology, ¶ [2]. In turn, “consultation” means “communication
of information reasonably sufficient to permit the client to
appreciate the significance of the matter in question.” Id. ¶ [3].
A waiver must be predicated upon disclosure sufficient to allow
the client to make “a fully informed decision” and
to make the client “aware of the possible extra expense,
inconvenience, and other disadvantages that may arise if an actual
conflict of position should later arise and the lawyer be required
to terminate the representation.” D.C. Rule 1.7, comment
[19]; see In re James, 452 A.2d 163, 167 (D.C. 1982) (requiring “a
detailed explanation of the risks and disadvantages to the client”).
A
conflict of interest under Rule 1.9 (former client) also may
be waived. D.C. Rule 1.9, comment [3]. Such a waiver is valid “only
if there is disclosure of the circumstances, including the lawyer’s
intended role in behalf of the new client.” Id.6 That is,
the Rules require that a client who is asked to waive an actual
or potential conflict have an adequate appreciation of what protection
she is giving up. This requirement is subjective, meaning that
more explanation may be required to satisfy the Rules’ consent
and consultation criteria where a less sophisticated client is
involved than where a more sophisticated client is being asked
to waive its rights. See D.C. Rule 1.7, comment [20]; ABA Opinion
at 170.
We know of no District of Columbia Court
of Appeals decision that expressly permits or prohibits advance waivers of conflicts
of interest.7 The
D.C. Rules are silent on whether a client may give an
advance waiver as to itself, though a comment to Rule 1.7 permits
an organization client to “give consent to the lawyer in
advance to engage in representations adverse to an affiliate,
owner or other constituent of the client . . . so long as the
requirements of Rule 1.7(c) can be met.” D.C. Rule 1.7,
comment [17]. Similarly, this committee has not addressed the
issue directly, though we have expressed doubt about the enforceability
of advance waivers, “especially where the client is not
a sophisticated consumer of legal services,” D.C. Ethics
Op. 265 (1996), and doubt whether advance waiver of a client’s
right to accept a confidential settlement could have been the
product of informed consent, D.C. Ethics Op. 289 (1999). Nevertheless,
we do not write on a clean slate: The American Bar Association’s
Committee on Ethics and Professional Responsibility, the Restatement
of the Law Governing Lawyers, the ABA’s Ethics 2000 Commission,8 various courts, bar associations in other United States jurisdictions,
and at least one respected academic figure have said that while
advance waivers are not per se improper, they will be sustained
only where the client can be said to have given informed consent.
The
ABA Opinion, for example, observes that “‘[u]nlike
the client issuing a specific waiver, the client issuing a prospective
waiver cannot know what confidences he will in the future disclose
or in what adverse representations the attorney may engage.’” ABA
Opinion at 171 (quoting Note, Prospective Waiver of the Right
to Disqualify Counsel for Conflicts of Interest, 79 Mich. L.
Rev. 1074, 1082 (1981)). Accordingly, that opinion states that
a prospective waiver
probably will not stand unless it identifies the opposing party
or at least a class of potential opponents, as well as giving
the client sufficient information to appreciate “the nature
of the likely matter and its potential effect on the client.” Id.
at 171. The ABA Opinion also cautions that a waiver of conflicts
does not constitute a waiver of confidentiality, see infra n.
10, and suggests strongly that any advance waiver be in writing,
ABA Opinion at 172-73.
The ABA Opinion also requires that when
a conflict arises, the lawyer revisit the judgment(s) she made
originally about the propriety of the waiver. Id. at 171. This
does not apply literally in the District of Columbia because
the ABA Model Rules of Professional Conduct (“Model Rules”)
require that the lawyer “reasonably believe[] the representation
will not adversely affect the relationship with the other client” in
addition to requiring that the clients consent after consultation.
Model Rule 1.7(a). The D.C. Rules, on the other hand, permit
a lawyer to seek a waiver even though the representation reasonably
may be expected to affect adversely the relationship with the
other client. D.C. Rule 1.7(b)(2)-(3), 1.7(c). We nevertheless
believe that a prudent lawyer in this jurisdiction should revisit
the issue when a conflict actually arises, so as to ensure that
adequate disclosure will be made to the new client from whom
a contemporaneous waiver of conflicts is being sought, see ABA
Formal Op. 99-415, and that the lawyer is satisfied that she
will be able to represent both clients adequately.
The Restatement
does not rule out advance conflict waivers but says that they
are
subject to special scrutiny, particularly if the consent
is general. A client’s open-ended agreement to consent
to all conflicts normally should be ineffective unless the client
possesses sophistication in the matter in question and has had
the opportunity to receive independent legal advice about the
consent.
On the other hand, particularly in a continuing client-lawyer
relationship in which the lawyer is expected to act on behalf
of the client without a new engagement for each matter, the gains
to both lawyer and client from a system of advance consent
to defined future conflicts might be substantial. A client might,
for example, give informed consent in advance to types of conflicts
that are familiar to the client. Such an agreement could effectively
protect the client’s interest while assuring that the lawyer
did not undertake a potentially disqualifying representation.
Restatement of the Law Governing Lawyers, § 122,
comment d (2000).
The Restatement adds that if, between the time
a prospective waiver is given and the time a conflict arises, “a material
change occurs in the reasonable expectations that formed the
basis of a client’s informed consent, the new conditions
must be brought to the attention of the client and new informed
consent obtained.” Id. Presumably, by “material change” the
comment means something short of the change that itself creates
the conflict, else there could be no advance waivers.
The changes
in the Model Rules recommended by the ABA Ethics 2000 Commission
include a comment on the subject of advance conflict waivers.
Commission on Evaluation of the Rules of Professional Conduct,
Report to House of Delegates (May 2001 rev.) (“Ethics 2000
Report”), prop. Model Rule 1.7, comment [22], available
at www.abanet.org/cpr/e2k-report_ home.html. 9 The general test
of such a waiver is “the extent to which the client reasonably
understands the material risks that the waiver entails.” Id.
This in turn depends on the completeness of the explanation of
possible conflicts and the “actual and reasonably foreseeable
adverse consequences” of such conflicts. Id. Therefore,
consent to a type of conflict with which
the client is familiar is more likely to be effective than a
general or open-ended consent.
Id. Thus,
if the client is an experienced user of the legal services
involved and is reasonably informed regarding the risk that a
conflict may arise, such consent is more likely to be effective,
particularly if, e.g., the client is independently represented
by other counsel in giving consent and the consent is limited
to future conflicts unrelated to the subject of the representation.
Id. The Commission’s comment on “informed consent” echoes
this theme: In determining whether the information and explanation
provided are reasonably adequate, relevant factors include whether
the client or other person is experienced in legal matters generally
and in making decisions of the type involved, and whether the
client or other person is independently represented by other
counsel in giving the consent. Normally such persons need less
information and explanation than others, and generally a client
or other person who is independently represented by other counsel
in giving the consent should be assumed to have given informed
consent.
Id., Rule 1.0, comment [6] (emphasis added).
Most courts
that have considered this issue have ruled along the lines set
out by the ABA Opinion, the Restatement, and the proposal of
the Ethics 2000 Commission. Advance conflict waivers have been
sustained where the potential adverse party was known and identified,
the client giving the waiver was sophisticated, and the waiver
had been reviewed by the client’s in-house counsel. E.g.,
United Sewerage Agency v. Jelco Inc., 646 F.2d 1339 (9th Cir.
1981); Fisons Corp. v. Atochem North Amer., Inc., 1990 U.S. Dist.
LEXIS 15284, 1990 WL 180551 (S.D.N.Y. 1990); Interstate Properties
v. Pyramid Co. of Utica, 547 F. Supp. 178 (S.D.N.Y. 1982). The
Fisons court stated that where the waiving client is sophisticated,
notification of the potential conflict itself is sufficient to
satisfy the requirement. Fisons Corp., 1990 WL 180551, at *5.
Moreover, at least one court has held that an advance waiver
may be implied where the objecting client, including its in-house
counsel, had extensive knowledge of the law firm’s longtime
representation of the other client. City of Cleveland v. Cleveland
Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio
1976), aff’d mem., 573 F.2d 1310 (6th Cir. 1977).
On the
other hand, advance waivers have been struck down where they
are unduly general and unsophisticated clients are involved.
Correspondence with the objecting client’s nonlawyer employees
(claims adjusters), for example, was held insufficient to constitute “consultation” or “full
disclosure.” Florida Ins. Guaranty Ass’n, Inc. v.
Carey Canada, Inc., 749 F. Supp. 255 (S.D. Fla. 1990); see Marketti
v. Fitzsimmons, 373 F. Supp. 637 (W.D. Wisc. 1974) (where client
a labor union local, mere knowledge of second representation
insufficient to constitute waiver). Similarly, an open-ended
release of the lawyer from “all rights, burdens, obligations,
and privileges which appertain to his [former] employment,” coupled
with consent for the lawyer to “engage his services pro
and con, as he may see fit,” was held (notwithstanding
the relative sophistication of the client) grossly insufficient
to justify the lawyer’s subsequent activity—including
disclosure of confidential information—adverse to the former
client. In re Boone, 83 F. 944 (N.D. Calif. 1897). Instead, said
the court, the release would be effective only if it were “positive,
unequivocal, and inconsistent with any other interpretation.” Id.
at 956. A more recent decision held that a general advance consent
covering all unrelated matters is insufficient to waive adversity
in litigation unless it expressly refers to “litigation.” Worldspan,
L.P. v. Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356 (N.D.
Ga. 1998).
[F]uture directly adverse litigation against one’s
present client is a matter of such an entirely different quality
and exponentially greater magnitude, and so unusual given the
position of trust existing between lawyer and client, that any
document intended to grant standing consent for the lawyer to
litigate against his own client must identify that possibility,
if not in plain language, at least by irresistible inference
including reference to specific parties, the circumstances under
which such adverse representation would be undertaken, and all
relevant like information.
Id. at 1360; see Hasco, Inc.
v. Roche, 700 N.E.2d 768 (Ill. App. 1998) (narrow construction
of advance waivers). But see Zador Corp. N.V. v. Kwan, 31 Cal.
App. 4th 1285, 1300-01, 37 Cal. Rptr. 2d 754, 763 (Cal. App.
1995) (construing general waiver, given in joint representation
context, to include litigation).
At least two major local bar
associations have opined that advance waivers of conflicts are
permissible, particularly where the waiving client is sophisticated.
N.Y. County Lawyers’ Ass’n Ethics Op. 724 (1998);
Los Angeles County Bar Ass’n Formal Op. 471 (1994). The
New York County opinion adopts the ABA Opinion’s recommendations
regarding disclosure of potential adverse clients (or types of
clients) and types of adverse representations, adding that the
lawyer also should disclose the steps to protect the client (e.g.,
erection of an ethical wall) that will be taken should a conflict
arise. The ultimate issue, the opinion states, is whether “the
subsequent conflict should have been reasonably anticipated by
the original client based on the disclosures made and the scope
of the consent sought.” Taking cognizance of the subjective
nature of informed consent, the New York County opinion observes
that for
a sophisticated client, such as a large
corporation with in-house counsel, the adequacy of disclosure
will be put
to a less stringent test than if the client were a small business,
an individual unsophisticated with respect to legal matters,
a child or an incapacitated person.
. . . .
Indeed, a “blanket” waiver
of future conflicts involving adverse parties may be informed and enforceable
depending on the client’s sophistication,
its familiarity with the law firm’s practice, and the reasonable
expectations of the parties at the time consent is obtained.
For example, a subsequent representation may be said to have
been reasonably contemplated by a sophisticated client, advised
by in-house counsel, who is familiar with a law firm’s
multi-disciplinary practice and wide variety of clients.
Finally, a prominent academic recently has suggested a “bright
line” standard under which even a broad advance conflict
waiver generally should be enforced “if it is unambiguous
and the client is independently represented by another lawyer,
including in-house counsel, at the time the waiver is given.” Richard
W. Painter, Advance Waiver of Conflicts, 13 Geo. J. Legal Ethics
289, 312 (2000) (“Painter”); accord Brian J. Redding,
Suing a Current Client: A Response to Professor Morgan, 10 Geo.
J. L. Ethics 487, 497-99 (1997). Professor Painter suggests using
solely the “independent representation” criterion
rather than coupling it to the “sophisticated client” criterion
suggested by the Restatement. Painter, at 327. His approach avoids
the uncertainty inherent in making the validity of the waiver
depend on a subjective judgment of whether a client is “sophisticated.” Id.
Professor
Painter also suggests that the “substantially
related” criterion that applies where a former client is
involved, see D.C. Rule 1.9; Brown, 437 A.2d 37, should be part
of the test of which conflicts can be waived in advance. Painter,
at 321.
Although loyalty and confidentiality concerns
are heightened when a lawyer is concurrently representing clients
with adverse
interests, the sweeping prohibition of concurrent conflicts rules
can sometimes be intolerable. Many lawyers respond by not taking
on a new client who might in the future have interests adverse
to current clients, knowing that once they begin representing
a client, they will not be permitted to represent other clients
in matters where the first client’s interests are adverse.
. . . .
Although
the risk of adverse use of confidential information is increased
by a waiver that imposes the substantial relationship
test on concurrent conflicts, information learned in an unrelated
representation is generally of limited value and the client is
furthermore still protected by separate prohibitions on disclosure
or adverse use of client information (Model Rules 1.6 and 1.8(b)).
Id.
Conclusions
Thus the modern view—held by the
courts, the American Bar Association, local bar associations
and the American Law Institute—is that advance waivers
of conflicts of interest are permissible, within certain limits
and subject to certain client protections. We conclude that the
D.C. Rules are consistent with that view and that they permit
advance waivers under Rules 1.7 and 1.9. See United Sewerage
Agency, 646 F.2d at 1349-50. “Clients who are fully advised
should be able to make choices of this kind if they wish to do
so.” Id. at 1350.
Such waivers, however, are permissible
only if the prerequisites of the D.C. Rules—namely “full
disclosure of the existence and nature of the possible conflict
and the possible adverse consequences of such representation”—are
satisfied. See D.C. Rule 1.7(c). As noted above, the client must
have “information reasonably sufficient to permit the client
to appreciate the significance of the matter in question,” D.C.
Rules, Terminology, ¶ [3], and to allow the client to make “a
fully informed decision” with awareness “of the possible
extra expense, inconvenience, and other disadvantages that may
arise if an actual conflict of position should later arise and
the lawyer be required to terminate the representation.” D.C.
Rule 1.7, comment [19]; see In re James, 452 A.2d at 167 (requiring “detailed
explanation of the risks and disadvantages to the client”).
Ordinarily this will require that either (1) the consent is specific
as to types of potentially adverse representations and types
of adverse clients (e.g., a bank client for whom the lawyer performs
corporate work waives the lawyer’s representation of borrowers
in mortgage loan transactions with that bank) or (2) the waiving
client has available in-house or other current counsel independent
of the lawyer soliciting the waiver.
Further, the lawyer must
make full disclosure of facts of which she is aware, and hence
cannot seek a general waiver where she knows of a specific impending
adversity unless that specific instance also is disclosed.
See D.C. Rule 1.7, comment [19]; City of El Paso v. Salas-Porras,
6 F. Supp. 2d 616, 625-26 (W.D. Tex. 1998). A corollary of this
rule is that if the lawyer cannot disclose the adversity to one
client because of her duty to maintain the confidentiality of
another party’s information, the lawyer cannot seek a waiver
and hence may not accept the second representation. D.C. Rule
1.7, comment [19] (“If a lawyer’s obligation to one
or another client or to others or some other consideration precludes
making . . . full disclosure to all affected parties, that fact
alone precludes undertaking the representation at issue”).
A
conflict arising from the lawyer’s appearance on both
sides of the same matter is, as noted above, nonwaivable. D.C.
Rule 1.7(a) & comment [1]. Because of the greatly increased
potential for misuse of client confidences—inadvertently
or otherwise—advance waivers should exclude from their
coverage not only the same matter but also any substantially
related matter. See Painter, at 321. For this reason, advance
waivers ordinarily will not come into play in former-client situations
under Rule 1.9 because disqualification under that rule extends
only to matters that are the same as, or substantially related
to, the initial matter.
Further, although the D.C. Rules do not
require that waivers be in writing, D.C. Rule 1.7, comment [20],
we join the ABA Committee on Ethics and Professional Responsibility
in recommending that—for the protection of lawyers as well
as clients—advance waivers be written. See ABA Opinion
at 173. We note in this connection that the ABA Ethics 2000 Commission
has proposed that the Model Rules require all waivers to be written.
Ethics 2000 Report, prop. Model Rule 1.7(b)(4) & prop. comment
[20].
Finally, any decision to act on the basis of
an advance waiver should be informed by the lawyer’s reasoned judgment.
For example, a prudent lawyer ordinarily will not rely upon an
advance waiver where the adversity will involve allegations of
fraud against the other client or is a litigation in
which the existence or fundamental health of the other client
is at
stake.
In accordance with the foregoing, a client not
independently represented by counsel (including in-house counsel) generally
may waive conflicts of interest only where specific types of
potentially adverse representations or specific types of adverse
clients are identified in the waiver correspondence. A client
that is independently represented by counsel generally may agree
to waive such conflicts even where the specificity requirements
set out in the preceding sentence are not satisfied.10
Appendix
Sample Advance Waiver of Conflicts of Interest
Below is a sample of text for
an advance
waiver
of
conflicts
of interest.
The committee
does not view this text as authoritative or exclusive:
“As
we have discussed, the firm represents many other companies and
individuals. It is possible that during the
time we are representing you, some of our current or future clients
will have disputes or transactions with you. [For example, although
we are representing you on __________, we have or may have clients
whom we represent in connection with ________________.] You agree
that we may continue to represent, or undertake in the future
to represent, existing or new clients in any matter, including
litigation, even if the interests of such other clients in such
other matters are directly adverse to yours, so long as those
matters are not substantially related to our work for you.”
Inquiry
No. 00-4-13
Adopted: September 20, 2001
- Waivers of conflicts of interest, which are the principal subject of this
opinion, are different from waivers of confidentiality. See infra note
10.
- D.C. Rule 1.8 addresses conflicts of interest arising from certain
types of transactions. This opinion does not address waivers of such
conflicts.
- We accordingly view a conflict waiver given as part of an agreement
for representation by a single lawyer
of multiple clients, see D.C. Rules 1.7(c), 2.2, as more in the
nature of a current than an advance waiver.
- “Giving effect to a client’s consent to a conflicting representation
might rest either on the ground of contract freedom or on the related
ground of personal autonomy of a client to choose whatever champion the
client feels is best suited to vindicate the client’s legal entitlements.” Charles
Wolfram, Modern Legal Ethics § 7.2.2, at 339 (1986).
- Because a conflict of interest under Rule 1.7 or 1.9 is imputed to
a lawyer’s entire firm, D.C. Rule 1.10(a); D.C. Ethics Op. 279
(1998), “lawyer” in this discussion comprehends not only the individual lawyer but her entire firm. Thus, if one lawyer in a law firm is disqualified by reason of Rule 1.7 or Rule 1.9, the entire firm is disqualified. D.C. Rule 1.10(a); see D.C. Rule 1.7, comment [23]; D.C. Rule 1.9, comment
[3]; D.C. Ethics Op. 279 (1998).
- Where the former client is the government, issues of disqualification,
imputation, and waiver are governed by Rule 1.11 rather than Rule 1.9.
D.C. Rule 1.9, comment [3].
- A 1994 decision expressly declined to rule
that an advance waiver by an individual member of a business partnership
of a lawyer’s representation of the partnership as well as the
individual partners is binding as a matter of law. Griva v. Davison,
637 A.2d 830, 846 (1994). The statement was dictum, however, and
in any event is consistent with this opinion.
- The Ethics 2000
Commission formally is known as the Commission on Evaluation
of the Rules of Professional Conduct.
- The Commission’s recommendations will not become part
of the Model Rules until and unless they are adopted by the
ABA House of Delegates. The House of Delegates began consideration
of the proposals at its August 2001 meeting but did not complete
the effort and is scheduled to resume consideration of the
report at its February 2002 meeting. ABA Stands Firm on Client
Confidentiality, Rejects “Screening” for Conflicts
of Interest, 70 U.S.L.W. 2093, 2095 (Aug. 14, 2001). Comment
[22] was considered expressly at the August 2001 meeting but
a proposed amendment that would have altered or deleted it
was not adopted. Id. at 2094
- Waivers permitting the adverse use or disclosure of confidential
information, see D.C. Rule 1.6(c)-(d), may not be implied from
waivers of conflicts of interest. Because of their considerable
potential for mischief, waivers of confidentiality require
particular scrutiny and may be invalid even when granted by
sophisticated clients with counsel (in-house or outside) independent
of the lawyer seeking the waiver. See Westinghouse Elec. Corp.
v. Gulf Oil Corp., 588 F.2d 221, 229 (7th Cir. 1978) (expressing
doubt as to the efficacy of “a vague, general” advance
waiver of confidentiality); In re Boone, 83 F. 944 (prohibiting
waiver of confidentiality requirement). But see ABA Formal
Op. 99-415 (1999) (suggesting that a more flexible standard
may apply where the waiving client is sophisticated or has
in-house counsel); Brian J. Redding, The “Confidential
Information” Conflict—Is It Time for the ABA to
Rethink its Position on Waiver?, Prof. Law., Winter 1999, at
10 (same). As with conflicts of interest, see supra note 3,
we view the waivers of confidentiality that commonly are found
in joint and “intermediary” representation situations,
see D.C. Rules 1.7, 2.2, as constituting current, rather than
advance, waivers.
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