Are the ABA Formal Ethics Opinions Advanced Enough Themselves?

Advance Waivers of Conflicts of Interest: Are the ABA Formal Ethics Opinions Advanced Enough Themselves?

Brown, Alice E

INTRODUCTION

Conflicts of interest arise frequently in legal practice, as lawyers and law firms represent multiple clients with often overlapping or competing interests. A conflict of interest in this context is defined as a “real or seeming incompatibility between the interests of two of a lawyer’s clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent.”1 Model Rule 1.7 (“Conflicts of Interest: Current Clients”)2 of the Model Rules of Professional Conduct (“Model Rules”) specifically addresses conflict of interest issues, including the ability of a client to waive his or her objection to any conflict of interest.3 A waiver is a voluntary relinquishment, whether express or implied, of a legal right4-in this case, the right to be represented by one’s attorney with no conflicts of interest or adverse effects.5

When the American Bar Association’s (“ABA”) Standing Committee on Ethics and Professional Responsibility (“Committee”) released its Formal Opinion 05-436(6) in May of 2005, it interpreted the scope of Model Rule 1.7 more broadly than ever before, giving lawyers far greater latitude to seek conflict waivers from clients.7 Previously, the Committee had expressed a more cautious view of advance waivers due to its concern that clients would lack the necessary information about potential conflicts to give truly informed consent.8 The specific issue addressed in the Opinion is whether, and under what circumstances, Model Rule 1.7 allows a lawyer to obtain a client’s informed consent, or waiver, to conflicts of interest that may occur in the future, even if at the time the client signs the waiver those conflicts are indeterminable.9 The Committee determined that Model Rule 1.7 does in fact permit such advance waivers and provides adequate guidance and standards to clients waiving future conflicts.10 In issuing its new Opinion, the ABA changed course on the issue of advance waivers by revoking its pre-existing opinion.11

While the Opinion’s conclusion is commendable, as the increasing complexity and sophistication of law firms and their clients demand more flexibility, the issue now is whether or not the particular guidelines and standards the Opinion sets forth are the most appropriate. Although the majority of states have yet to incorporate the language of the new policy into their codes (probably due in large part to the Opinion’s recent issuance), a number of states appear to be following the advance waiver trend already.12 However, the lag in incorporation may also be because, from a policy standpoint, the Opinion’s guidelines rely heavily on the test set out in Rule 1.7, resulting in a degree of rigidity.13 In addition, the Opinion interprets the effectiveness of a waiver to be dependent on the level of sophistication of the client, rather than what the lawyer finds prudent.14

While the availability of advance waivers likely furthers the best interests of the legal profession, the standard used should be more flexible and broad, involving attorney judgment, rather than a multi-part test subject to client sophistication. Part I of this Note discusses the ABA’s efforts in recent years to clarify Model Rule 1.7 through formal opinions, and specifically explores what prompted the ABA in its 2005 Opinion to permit advance waivers in a much wider range of situations than previously allowed. Part II describes why alternate or additional standards may be preferable to those discussed in the new Opinion, and argues that these alternate standards are more consistent with the way in which states view advance waivers. Ultimately, while the new Opinion is a productive update, the set of standards by which the ABA has proposed to evaluate informed consent could be expanded.

I. BACKGROUND

A. MODEL RULE 1.7

The Model Rules contemplate that a lawyer in appropriate circumstances may obtain the effective informed consent of a client to future conflicts of interest.

General and open-ended consent is more likely to be effective when given by a client that is an experienced user of legal services, particularly if, for example, 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. Rule 1.7, as amended in February 2002, permits a lawyer to obtain effective informed consent to a wider range of future conflicts than would have been possible under the Model Rules prior to their amendment. Formal Opinion 93-372 (Waiver of Future Conflicts of Interest) therefore is withdrawn.15

Model Rule 1.7 provides guidance for lawyers representing clients for whom the representation may involve concurrent conflicts of interest.16 Concurrent conflicts are defined in paragraph (a) as existing when either: “(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.”17 Despite the existence of such concurrent conflicts, a lawyer may represent a client, nonetheless, if the relationship meets the following four-part test:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.18

This current version of Model Rule 1.7 was adopted in 2002, by the ABA House of Delegates, in response to the recommendations of the ABA Commission on the Evaluation of the Rules of Professional Conduct (“Ethics 2000”).19 The Rule was amended to clarify vague language in the pre-2002 version that said a lawyer shall not represent a client if the representation “may be materially limited” by a lawyer’s responsibilities to another client.20 The 2002 version of Model Rule 1.7 also clarifies the earlier version by requiring client consent to be in writing, and by breaking down the prerequisites for consent into three distinct components.21

B. ADVANCE WAIVERS: INFORMED CONSENT TO FUTURE CONFLICTS

Allowing informed consent to conflicts of interest serves not only the interest of the lawyer, but those of his or her clients as well; the client who wants to hire the lawyer despite the lawyer’s conflicting interests has an interest in being free to choose the representation of her choice.22 While a lawyer’s loyalty to his clients is paramount, if the client who could be adversely affected by the lawyer’s acceptance of a new client is willing to waive his objection to the representation, his interests are being protected as well.23 A waiver is a relinquishment by the client of his right to object to his lawyer’s taking on additional clients with interests adverse to his own.

The ABA Committee on Ethics and Professional Responsibility set forth an example of a situation in which such a waiver would be appropriate in its Formal Opinion 93-372: if “a corporation in Miami [is] retaining the Florida office of a national law firm to negotiate a lease,” precluding “that firm’s New York office from taking an adverse position in a totally unrelated commercial dispute against another division of the same corporation” is thought to be an unreasonable and undesirable limitation on both the clients and the lawyers.24

An advance waiver is different in that it is “granted by a client or a prospective client before an identifiable conflict arises and before the precise parameters of the conflict (e.g., the adverse party or the specific matter involved) are known.”25 Most often, such a waiver is sought at the very beginning of the establishment of an attorney-client relationship.26 Such waivers must be in writing according to Rule 1.7(b), and if the client signing the waiver is not independently represented by counsel, the waiver should “spell out in as much detail as possible the specific types of conflicts that may arise, the potential consequences to the waiving client of these conflicts, and the measures the lawyer will undertake to prevent possible harm to the waiving client.”27

C. FORMAL OPINIONS 93-372 AND 05-436

Before the 2002 revisions to the Model Rules were adopted by the ABA, waivers of future conflicts of interest were guided by Formal Opinion 93-372, which was issued to remedy the fact that the Model Rules themselves did not expressly address the circumstances under which a client could consent to future conflicts of interest.28 Opinion 93-372 advised that the effectiveness of client consent to future conflicts was “generally limited to circumstances in which the lawyer can and does identify the potential party or class of parties that may be represented in the future matter.”29 Opinion 93-372 also indicated that a lawyer may need to identify the specific nature of the likely future conflicts in order for the client’s consent to be truly informed.30

As noted above, Opinion 93-372 was issued at a time when no Model Rule or comment to any rule expressly addressed informed consent to future conflicts of interest, and there was no guidance on how to determine whether successive matters for different clients were “substantially related.”31 Thus, once Comment 22 of the revised Model Rule 1.7 specifically addressed and detailed the circumstances under which a client’s waiver is effective-determined by the extent to which the client reasonably understands the material risks entailed in the waiver-Opinion 93-372’s strict limitation of the scope of consent to future conflicts was inconsistent with the Model Rules.

The addition of Comment 22, which specifically addresses informed consent to future conflicts, was one of the major changes made during the 2002 revisions.32 The Comment specifies that the effectiveness of such waivers, which can only be granted subject to their meeting the test of Model Rule 1.7(b), is dependent upon the “extent to which the client reasonably understands the material risks that the waiver entails.”33

“Reasonable” belief, when used in reference to a lawyer, “denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.”34 The Comment further specifies that the greater the experience and familiarity of the client with the type of conflict to which he is consenting, the more effective the waiver will be. More specifically, “general and open-ended” consent from an inexperienced client will likely be ineffective.35

Finally, the Comment notes that the most effective consent will be limited to future conflicts “unrelated to the subject of the representation” or consent given by a client who has independent legal representation on the issue that poses the conflict.36

With the revision of Model Rule 1.7 and the addition of Comment 22, requiring the client’s reasonable understanding of the waiver and its risks, the old requirements of Opinion 93-372 have become obsolete. It is no longer necessary that a lawyer identify the potential party that may be represented in the future dealing or the specific nature of the likely future conflicts in order for the client’s consent to be truly informed, as was previously required by Opinion 93-S72.37 In fact, due to this inconsistency, Opinion 05-436 withdrew Opinion 93-372 in its entirety.38

Opinion 05-436 provides more comprehensive guidance than its predecessor not only by eliminating the inconsistent limitations, but also by distinguishing between sophisticated legal consumers and less experienced clients as a means of evaluating the likely effectiveness of informed consent from each group.39

Opinion 93-372 addressed major concerns that waivers of future conflicts of interest would give rise to the possibility of disclosure or use of a client’s confidential information against it in a later matter. However, such concerns were not addressed in the context of a waiver limited to future conflicts that are not substantially related to the client’s matter.40 Therefore, given the revised Model Rule 1.7 and the addition of Comment 22, which specifies conflicts “not substantially related,” informed consent limited to unrelated future matters should not raise the confidential information and disclosure concerns addressed in Opinion 93-372.41

D. CLIMATE OF CHANGE

Even before the Ethics 2000 Committee adopted its revisions to Model Rule 1.7, the acceptance of advance waivers was evident in other parts of the legal community. Landmark ethics opinions from New York42 and the District of Columbia43 made advance waivers permissible. The 2000 Restatement (Third) of the Law Governing Lawyers, recognizing the potential trend toward advance waivers, stated that “the gains to both lawyer and client from a system of advance consent to denned future conflicts might be substantial.”44

In addition, various law review articles were written attesting to the benefits of advance waivers. One such article, by Jonathan J. Lerner, a partner at the law firm of Skadden, Arps, Slate, Meagher & Flom and adjunct professor at Brooklyn Law School, argued persuasively that the availability of advance waivers was not only beneficial to lawyers and their clients, but imperative.45 He explained that the legal profession has evolved dramatically in recent decades, and that the sophistication and complexity of both law firms and their clients has increased exponentially.46 Lerner argued that prohibiting clients from signing advance waivers to possible future conflicts was drastically rigid, in that it not only might deprive individual clients of their counsel of choice, but it also might undermine lawyer-client relationships in general.47 Indeed, Lerner’s points give credence to the idea that advance waivers should not only be permissible, but also easy to obtain.

As Lerner posits, the intent of Ethics 2000 was to “enhance client autonomy and help ensure that the client’s interests remain ‘paramount,’ and the prospective conflicts waiver provisions are a step in that direction.”48 Formal Opinion 05-436 embraced this forward step and attempted to guide legal professionals in Grafting such newly expansive waivers.

II. CURRENT CLIMATE AND SUGGESTED IMPROVEMENTS

A. STATE ADOPTION OF THE MODEL RULES AND PERMISSION OF ADVANCE WAIVERS

Every state has its own set of ethics rules, and they vary in the degrees to which they have modeled their own rules on the Model Rules. Some have merely borrowed language,49 while others have adopted the Model Rules in their near entirety.50 Therefore the extent to which the 2002 revisions to Model Rule 1.7 affected each state depends on how closely the state adheres to the Model Rules.

In addition to the guidance contained in the Model Rules and the ABA’s Formal Opinions, state bar associations issue their own ethics opinions to guide the lawyers in their specific jurisdictions. Some states, therefore, addressed the issue of advance waivers before the Model Rules were revised and Formal Opinion 05-436 was issued.

For example, both New York County and the District of Columbia issued ethics opinions permitting advance waivers to future conflicts of interest51 before Opinion 05-436 was released. Similarly to Opinion 05-436, both of these opinions address the issue of the sophistication of the client, advising that the more experienced and informed the client, the more effective the waiver.52 Indeed, numerous states have tackled the complicated issue of how to determine how “informed” informed consent waivers actually are.53

However, it remains to be seen what, if any, effect the new Opinion 05-436 will have on states’ willingness to adopt the Model Rules as a whole, to the letter of Rule 1.7 in particular, or the impact it will have on how their state ethics committees address advance waiver issues.

B. IMPLICATIONS: HAS REVISED MODEL RULE 1.7 GONE FAR ENOUGH?

In practice, waiver issues will likely not be as simple as the Model Rules and Formal Opinions seem to imply. As states increasingly adopt rules that permit advance waivers to as-yet-undetermined conflicts of interest, complications and concerns will no doubt arise; there will likely be hidden costs associated with obtaining such waivers, in addition to more policy-based concerns such as client loyalty and community perception of the legal profession.54

First, such waivers, without more guidance on how to properly effect and enforce an advance waiver from a client, may irrevocably harm the lawyer-client relationship. As Richard Painter, a professor at the University of Illinois Law School, wrote shortly before the revisions to the Model Rules were adopted, “[although [Ethics 2000’s] proposed revisions to Model Rule 1.7 are a step in the right direction . . . more specific language on advance waiver of conflicts should be incorporated into the Model Rules.”55 He concluded that while appropriately implemented advance waivers can help lawyers avoid “unnecessary and expensive ex-post-litigation”56 over conflicts of interest, waivers from inexperienced or unknowing clients could lead to or reflect unequal bargaining power between lawyer and client.57 A naive client who is asked to sign a blanket waiver is at a serious disadvantage to his fully-informed lawyer, who has a greater and more thorough understanding of the conflicts at issue and the rights the client is signing away.

At the very minimum, some sort of bright line rule for enforceability could be established, as Painter suggests, at least to avoid the imbalance issue.58 Painter notes that whether the client is independently represented by counsel, as Comment 22 mentions, could form the basis for such a rule, as it would eliminate the concerns about unsophisticated legal consumers and would ensure that the terms of the waiver could be bargained over on some equal footing.59 Painter suggests adding a whole separate paragraph to Model Rule 1.7, containing a number of clarifying specifications and definitions, such as who exactly the “client” is, a definition of what is “directly adverse,” and what constitutes “substantially related” matters.60

Second, and beyond the lawyer-client implications of the revised Model Rule 1.7, there also are consequences for law firms as a whole. In particular, the issue of advance waivers often arises when two law firms attempt to merge. In such a situation, the cost of bringing to light all concurrent and future conflicts of interest may be quite large.61 Even once firms have uncovered potential conflicts and believe a merger is in fact possible, they must begin the time-intensive and arduous process of asking all current and former clients to sign waiver forms.62 Moreover, as more firms merge, the drastic expansion of both client base and attorneys creates a plethora of opportunities for conflict.63

Third, and more generally, the increased leeway granted to lawyers seeking advance waivers has the potential to deemphasize the concept of attorney loyalty. In streamlining its views on concurrent conflicts of interest, the 2002 Model Rules seem to avoid the concept of professional integrity.64 A client can feel betrayed when his or her attorney takes on a new representation, no matter how unrelated, even if it does not involve any “substantial limitation on the lawyer’s exercise of independent professional judgment.”65

Such issues can come up, perhaps most obviously, in the context of estate planning, when one lawyer is representing two family members in unrelated issues. In a litigation context, this issue could arise when a “lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.”66 A lawyer in such a situation, who has obtained an informed waiver from his clients, may be in compliance with the letter of Model Rule 1.7, but could potentially offend or upset either or both clients.67

C. ARE ADDITIONAL STANDARDS NEEDED?

Perhaps, then, it is best to discuss advance waivers simultaneously with possible standards that would mitigate against the concerns mentioned above, such as the harm it can bring to the lawyer-client relationship, the firm as a whole, and the integrity of the legal profession. Three potential standards that could have been set out in Opinion 05-436 and used in conjunction with Model Rule 1.7’s advance waiver provision include: (1) the lawyer’s duty to inform; (2) the appearance of impropriety; and (3) the disinterested lawyer standard.

First, a lawyer’s duty to inform encompasses his legal obligation to disclose fully to the client all preexisting representations and any potential conflicts. “No matter what the technicalities of the rules say, when the client finds out about the conflicting representation the client is going to say ‘How could you not tell me about this?’ It’s not even a consent issue …. It’s a simple duty to inform,” said Charles E. Lundberg, an attorney audience member at an August 2005 program concerning “Loyalty, Current Clients and Unrelated Matters,” sponsored by the Association of Professional Responsibility Lawyers.68 This may not be as large a problem for the sophisticated legal consumer who is knowledgeable about his lawyer’s other clients, but for a more ignorant client who may not fully understand the waiver he or she is asked to sign, the duty to inform may prove crucial in providing the client the power to refuse consent.

Thus, it seems that the lawyer’s duty, as part of his duty of loyalty, to fully inform all current or potential clients about current and potential future conflicts of interest should be an explicit prerequisite to the enforceability of any advance waiver. In fact, many states require the lawyer to grant the client “full disclosure” of the nature and effects of any current or future conflicts of interest before informed consent can be effective.69

While Comment 18 to Rule 1.7 states that “informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse affects on the interests of that client,”70 it doesn’t explicitly frame that requirement in terms of the lawyer’s obligations to his clients. Formal Opinion 05-436 discusses at length the necessary sophistication of legal consumers, but perhaps the lawyer’s duty to disclose should have been made more explicit in the Opinion.

Second, it may be along these lines that some states incorporate a standard of the avoidance of “the appearance of impropriety,” at least in the comments to their rules of professional conduct.71 Although the “appearance of impropriety” standard was abandoned with the adoption of the Model Rules in 1983,72 it might have been an effective addition to Opinion 05-436. The drafters of the 2002 Model Rules revisions considered the standard to be “unnecessary,” yet one may argue that “[p]erhaps the drafters should have looked at how frequently and freely people resort to, and charge, the ‘appearance of impropriety'”73 before discarding it. Charges based on such an appearance have “increased at a rapid rate” in recent years.74

Several states have themselves incorporated the “appearance of impropriety” standard into their own rules of professional conduct. Until recently, New Jersey had a separate subsection in its Rule 1.7(c)(2) which articulated how in certain cases, representation could be impermissible due to the mere appearance of impropriety. Significantly, the current comments to New Jersey’s Rule 1.7 note that despite the revision of the state’s rules, the intent is “expressly to preserve … the ‘appearance of impropriety’rule.”75 Moreover, Arkansas adopted the Model Rules nearly in their entirety effective May 1, 2005, but the comment to the state’s Rule 1.7 also retains the avoidance of the “appearance of impropriety” standard:76

The duty to avoid the appearance of impropriety is not a mere phrase. It is part of the foundation upon which are built the rules that guide lawyers in their moral and ethical conduct. This obligation should be considered in any instance where a violation of the Rules of Professional Conduct are at issue. The principle pervades these Rules and embodies their spirit.77

Indeed, in March of 2005, the ABA’s Joint Commission To Evaluate the Model Code of Judicial Conduct discussed whether the “appearance of impropriety” standard should be added into Canon 1, which is titled “[a] judge should uphold the integrity and independence of the judiciary.”78 The Commission “agreed with the majority of public comments urging the Joint Commission to adopt a standard that expressly prohibits both impropriety and the appearance of impropriety,”79 and a “majority of members seemed to favor an enforceable appearance of impropriety standard.”80 If the Model Code of Judicial Conduct contains an appearance of impropriety standard, one that is enforceable, it does not seem improbable that the Model Rules could contain one as well, particularly in reference to conflicts of interest. Certainly the integrity of the legal profession is worth upholding to the same extent as the integrity of the judiciary.

While one of the criticisms of the appearance of impropriety standard is its vagueness, leading to concerns about from whose perspective the appearance is to be judged, the test set forth in Rule 1.7(b) simply does not convey the same moral weight as this standard.81 Comment 1 to Model Rule 1.7 addresses loyalty as an important factor in addressing conflicts, stating that it is an “essential element” in the lawyer-client relationship.82 Such strong language could at the very least have been emphasized in Formal Opinion 05-436.

Furthermore, those outside the lawyer-client relationship-observers of the legal industry-must be kept in mind when evaluating current or potential conflicts of interest. While the “reasonable lawyer” and “reasonable client” are important, the perception of the broader public is also important in order to maintain the profession’s integrity. Indeed, “[i]f clients, third parties, and observers of the legal system are not confident that lawyers are exercising independent professional judgment, the potential exists for damage to both existing lawyer-client relationships and perceptions of the legal system itself.”83

There is substantial case law in states such as New Jersey urging lawyers to avoid even the appearance of impropriety.84 Opinions from the highest courts of Connecticut, Montana, New York, and the District of Columbia all discuss using some version of the appearance of impropriety standard to evaluate conflicts of interest and the validity of informed consent.85 A recent case decided by the West Virginia Supreme Court of Appeals applied the appearance of impropriety standard “as a basis for disqualifying a law firm from handling a case against a litigation opponent,” even though West Virginia’s ethics rules do not include that test.86 And the Montana Supreme Court has noted that this standard “should not be wholly abandoned in spirit. Certainly concerns about the public’s perception of the legal profession bears some relevance” when viewing attorney conduct.87

Perhaps the ABA should note this, and return a discussion of this standard to the comments of Rule 1.7. Even without the appearance of impropriety standard written into the text of the rule, Formal Opinion 05-436 would have been more thorough and helpful had it worked this standard into its interpretation of requirements for and effectiveness of advance waivers. It would place responsibility on the lawyer to behave with integrity, in addition to the client’s responsibility to fully inform himself.

In addition to the duty to inform and appearance of impropriety standards, a third helpful standard, to use when evaluating advance waivers, is the “disinterested lawyer” standard. New York, for example, has an ethics code that holds that interest in a “simultaneous representation is consentable” if “a ‘disinterested lawyer’ would believe that the lawyer can competently represent the interest of each.”88 Similarly, a conflict with a lawyer’s own interest is consentable if “a disinterested lawyer would believe that the representation of the client will not be adversely affected thereby.”89 Colorado uses similar terminology, holding that “consent should not be obtained from a client in situations in which a disinterested lawyer would advise the client not to agree to the representation.”90

This standard involves predicting whether a hypothetical lawyer with no personal interest in the matter would think the lawyer in question could “exercise independent professional judgment” on behalf of the client.91 Conjuring up an “objective lawyer” encourages actual practicing lawyers to keep in mind the reputation of their profession and hold their behavior to its highest standards. Such a standard may be useful when applied to advance waivers as well; in seeking such waivers, each lawyer will be compelled to step outside the facts of the case at hand and evaluate his conduct and the propriety of the waiver objectively.

CONCLUSION

While Formal Opinion 05-436 appropriately and effectively broadened the scope of Model Rule 1.7 and the availability of advance waivers, it should have also broadened the standards by which their enforceability is evaluated. The four-part test in Model Rule 1.7 is quite clear and thorough, but it errs on the side of being overly formulaic. In order for the rule to be widely effective in everyday legal practice, the broader policy behind advance waivers and the reasons for their existence and regulation must be closely understood. The Committee issuing Formal Opinion 05-436 should have considered the spirit of the rule and allowed greater flexibility and autonomy in the lawyer-client relationship while at the same time emphasizing loyalty and integrity.

Each of the standards discussed in this Note helps to qualify Model Rule 1.7’s expansion of attorney leeway to seek advance waivers to conflicts of interest, qualifications inadequately undertaken by the recent Formal Opinion. While Formal Opinion 05-436 seeks to provide guidance about how and under what conditions such waivers may be granted, questions as to hidden costs of waivers and their practical implications are left unanswered. As Eileen Libby, associate ethics counsel for the ABA Center for Professional Responsibility, writes, “[a] lawyer sorting through the complexities of waiving future conflicts may be tempted to ask a question not covered in the ethics rules: Is it really worth the trouble to take on a case that raises these concerns?”92

More broadly, when analyzing the extent to which a client reasonably understands the material risks, or what constitutes “unrelated” interests, it is important to remember the need to preserve the integrity of the adversarial process.93 The standards discussed above, while not incorporated into the Model Rules, are those by which numerous states choose to evaluate cases in the context of their own rules of conduct. Thus, in addition to the guidance provided by the ABA’s Commission on Ethics and Professional Responsibility, lawyers would be well-served to step outside their advance waiver contracts and objectively evaluate their conduct in terms of propriety, loyalty, and integrity.

1. BLACK’S LAW DICTIONARY 319 (8th ed. 2004).

2. MODEL RULES OF PROF’L CONDUCT R. 1.7 (2004) [hereinafter MODEL RULES],

3. MODEL RULES R. 1.7.

4. BLACK’S LAW DICTIONARY, supra note 1, at 1611.

5. see generally MODEL RULES R. 1.7.

6. ABA Comm. on Ethics and Prof’1 Responsibility, Formal Op. 05-436 (2005).

7. MODEL RULES R. 1.7.

8. see Eileen Libby, Looking Ahead: ABA Ethics Opinion Says Clients May Waive Objections to Future Conflicts of Interest, 91 A.B.A. J. 26 (Aug. 2005).

9. See Eileen Libby, Looking Ahead: ABA Ethics Opinion Says Clients May Waive Objections to Future Conflicts of Interest, 91 A.B.A. J. 26 (Aug. 2005).

10. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 05-436 (2005).

11. Id.

12. See, e.g., L.A. County Bar Ass’n, Prof’1 Responsibility and Ethics Comm., Formal Op. 471 (1994); N.Y.C.L.A., Comm. On Prof’1 Ethics, Op. 724 (1998); D.C. Bar Legal Ethics Comm., Op. 309 (2001); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 122 cmt. d (2000).

13. See ABA Comm. on Ethics and Prof’1 Responsibility, Formal Op. 05-436 (2005); see also discussion infra Part I B.

14. Id.

15. See ABA Comm. on Ethics and Prof’1 Responsibility, Formal Op. 05-436 (2005).

16. See MODEL RULES R. 1.7.

17. MODEL RULES R. 1.7.

18. MODEL RULES R. 1.7.

19. See John Gilbeuat, Ethics 2000 Work Continues: Commission Cautious About Proposal To Allow Lawyers To Represent Families, 85 A.B.A. J. 91 (Oct. 1999); see also ABA Center for Prof’1 Responsibility, Ethics Commission, http://www.abanet.org/cpr/ethics2k.html (last visited Feb. 14, 2006).

20. MODEL RULES OF PROF’L CONDUCT R. 1.7 (1983). The text of the Pre-2002 version of Model Rule 1.7 reads as follows:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation of that client will not adversely affect the relationship with the other client; and (2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

MODEL RULES OF PROF’L CONDUCT R. 1.7 (1983).

21. See MODEL RULES R. 1.7.

22. See NATHAN M. CRYSTAL, PROFESSIONAL RESPONSIBILITY: PROBLEMS OF PRACTICE AND THE PROFESSION 209-14 (1996).

23. Id.

24. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 93-372 (1993).

25. Kathryn Fenton, Ask the Ethics Experts, ANTITRUST SOURCE, Jan. 2003, at 1, available at http:// www.abanet.org/antitrust/source/01-03/fenton.pdf.

26. Id.

27. Id.

28. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op, 93-372 (1993).

29. See Conflicts of Interest: ABA Panel sees More Leeway in Model Rules to Obtain Valid Consent to Future Conflicts, 21 LAW. MANUAL PROF. CONDUCT NEWSL. (ABA/BNA) 358 (2005) [hereinafter Conflicts of Interest].

30. See id.

31. Id.

32. MODEL RULES R. 1.7 cmt. 22.

33. MODEL RULES R. 1.7 cmt. 22.

34. MODEL RULES R. 1.O(i).

35. MODEL RULES R. 1.7 cmt. 22.

36. MODEL RULES R. 1.7 cmt. 22.

37. See ABAComm. on Ethics and Prof’1 Responsibility, Formal Op. 93-372 (1993).

38. See Conflicts of Interest, supra note 29.

39. See ABAComm. on Ethics and Prof’1 Responsibility, Formal Op. 05-436 (2005).

40. See id.

41. See id.

42. See N.Y.C.L.A. Comm. on Prof’l Ethics, Op. 724 (1998) (holding that, as an ethical matter, there is no bar to seeking a waiver of future conflicts).

43. See D.C. Bar Legal Ethics Comm., Op. 309 (2001) (holding that as a general matter advance waivers are not ethically forbidden).

44. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 122 cmt. d (2000).

45. Jonathan J. Lerner, Honoring Choice by Consenting Adults: Prospective Conflict Waivers as a Mature Solution to Ethical Gamesmanship -A Response to Mr. Fox, 29 HOFSTRA L. REV. 971 (2001).

46. Id. at 973.

47. Id. at 974.

48. Id. at 1004.

49. See, e.g., CAL. RULES OF PROF’L CONDUCT (2002). California’s Code of Professional Conduct does not conform to the Model Rules, yet after the Ethics 2000 Commission’s recommendations were made, California appeared ready and willing to make significant changes to its Code, including a numbering system more consistent with the Model Rules. “We’re going to try to use the Model Rules language whenever possible,” said Sean SeLeague, the liaison from California’s Commission on Professional Responsibility and Conduct to the Ethics 2000 Commission. Erin Walsh, ‘Ethics 2000’: What That Means for Business Lawyers; The Back Story, 12 BUS. L. TODAY 2 (2002).

50. See, e.g., S.C. APP. CT. R. 407 (2002); MONT. RULES OF PROF’L CONDUCT (2004).

51. See N.Y.C.L.A. Comm. On Prof’l Ethics, Op. 724 (1998); D.C. Bar Legal Ethics Comm., Op. 309 (2001).

52. See N.Y.C.L.A. Comm. On Prof’l Ethics, Op. 724 (1998); D.C. Bar Legal Ethics Comm., Op. 309 (2001).

53. See, e.g., Worldspan, L.P. v. Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356, 1358-59 (N.D. Ga. 1998). Worldspan states that:

The language of an engagement letter, while important to determine the nature and scope of any consent to representation of other clients, and to what extent such consent, if any, is ‘informed’, does not definitively circumscribe the scope of the lawyer’s professional responsibility under the circumstances. While not applicable here as experienced lawyers for plaintiffs were monitoring the engagement of the law firm, in the more normal situation, the lawyer, presumably possessing superior legal knowledge and experience, is presenting the prospective client with a document with legal implications prepared by the lawyer having possibly adverse effects on the client seeking his legal advice and to repose trust in him. It is the lawyer’s duty to insure that each client has all the necessary information to make consent truly informed.

Id.

54. See Leigh Jones, Mergers Are Courtships with Conflicts – So Beware; Uprooting Conflicts Is a Hidden Cost, 27 NAT’L L.J. 1, n.22 (Feb. 7, 2005). (Exploring not only all possible current conflicts of interest, but potential, as-yet-undetermined conflicts of interest, will take a significant amount of time and labor. Even if waivers are fully informed and executed appropriately, it is impossible to quantify the intangible effectemotional or otherwise-on clients of knowing that their attorneys, whom they may feel owe them a degree of loyalty, are engaged in work that directly conflicts with their own interests.); see also Elizabeth J. Cohen, Is Representing One Client Against Another Ever Worth It? Program Participants Ponder, 21 LAW. MAN. PROF. CONDUCT NEWSL. (ABA/BNA) 420 (2005).

55. Richard W. Painter, Advance Waiver of Conflicts, 13 GEO. J. LEGAL ETHICS 289, 289 (2000).

56. Id.

57. Id.

58. See id. at 312.

59. Id. at 312.

60. Id. at 326.

61. See Jones, supra note 54.

62. See id.

63. See id.

64. See MODEL RULES R. 1.7.

65. Elizabeth J. Cohen, Is Representing One Client Against Another Ever Worth It? Program Participants Ponder, 21 LAW. MAN. PROF. CONDUCT NEWSL. (ABA/BNA) 420 (2005).

66. MODEL RULES R. 1.7 cmt. 6.

67. See Cohen, supra note 65, at 420.

68. Id. The speaker, Charles E. Lundberg, was an attorney audience member at an August 2005 program concerning “Loyalty, Current Clients and Unrelated Matters,” sponsored by the Association of Professional Responsibility Lawyers. Id.

69. See, e.g., D.C. Bar Legal Ethics Comm., Op. 265 (2006); PA. RULES OF PROF’L CONDUCT R. 1.7 (2002); ILL. SUP. CT. PROF’L CONDUCT RULES R. 1.7 (2002).

70. MODEL RULES R. 1.7 cmt. 18.

71. NJ. DISCIPLINARY RULES OF PROF’L CONDUCT R. 1.7 cmt. (2002); ARK. MODEL RULES OF PROF’L CONDUCT cmt. 37 (2005); N. Y. CODE OF PROF’L RESP. EC 9-1, EC 9-2 (2002).

72. The standard was rejected as a “non-test,” as it was “deemed ‘question-begging.'” Ronald D. Rotunda, Alleged Conflicts of Interest Because of the “Appearance of Impropriety, ” 33 HOFSTRA L. REV. 1141, 1145-46 (2005). It was also criticized as “too vague and too ad hominum to be a real rule itself.” Id at 1145.

73. Id. at 1146.

74. Id. at 1142.

75. NJ. DISCIPLINARY RULES OF PROF’L CONDUCT R. 1.7 cmt. (2002).

76. In re Ark. Bar Ass’n, No. 01-1049 (Ark. 2005), available at http://courts.state.ar.us/opinions/2005a/ 20050303/arpc2005 .html.

77. ARK. MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 37 (2005).

78. MODEL CODE OF JUDICIAL CONDUCT Canon 1 (2004).

79. ABA Joint Commission to Evaluate the Model Code of Judicial Conduct, Summary of Minutes of Meeting, March 19-20, 2005, available at http://www.abanet.org/judicialethics/meetings/minutes/ minutes_sum_031905.pdf.

80. Id.

81. The text of Model Rule 1.7(b) reads:

Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

MODEL RULES R. 1.7(b).

82. MODEL RULES R. 1.7 cmt. 1.

83. Ellen Yankiver Suni, Conflicts of Interest, GPSoLO MAG., Oct./Nov. 2005, available at http:// www.abanet.org/genpractice/magazine/octnov2005/conflictsofinterest.html.

84. see, e.g., Matter of Petition for Review of Opinion No. 569, 103 N.J. 325, 330 (1986) (“This Court has had a long history of requiring attorneys to avoid even the appearance of impropriety. This history reflects the principle that an actual conflict of interest or ethical violation is not always necessary to disqualify an attorney when he acts as an adversary against a former or existing client.” (citations and footnote omitted)); Petition for Review of Opinion 552, 102 N.J. 194, 203 (1986) (“[I]t is necessary that the appearance of, as well as actual, wrongdoing be avoided.”).

85. see, e.g., Schuff v. A.T. Klemens & Son, 2000 MT 357, 303 Mont. 274, 16 P.3d 1002; Bergeron v. Mackler, 623 A.2d 489, 493 (Conn. 1993); André v. City of New York, 796 N.Y.S.2d 172 (N.Y. 2005); In re Sofaer, 728 A.2d 625 (D.C. 1999).

86. Appearance of Impropriety Standard for Conflicts Retains Vitality in West Virginia, 20 LAW. MAN. PROF. CONDUCT NEWSL. (ABA/BNA) 25 at 609, (Dec. 2004); State ex re/. Cosenza v. Hill, W. Va. No. 31756 (2004) (holding that a lawyer who previously had worked at a law firm that represented the opposing party in the same case disqualified him, as although he did not himself work on the case at his old firm, if his new firm remained on the case an appearance of impropriety would result).

87. Schuff, 2000 MT¶182.

88. David G. Keyko, Practicing Ethics: Conflicts of Interest and Waivers, 234 N.Y. LJ. 16 (July 2005).

89. Id.

90. COLO. DISCIPLINARY RULES OF PROF’L CONDUCT R. 1.7 cmt 6 (2002).

91. Keyko, supra note 88.

92. Libby, supra note 8.

93. see N.Y. CODE OF PROF’L RESPONSIBILITY EC 9-1,9-2 (2002).

ALICE E. BROWN*

* J.D., Georgetown University Law Center (expected May 2007); B.A., Stanford University (2002).

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