Consent is a Process, Not a Piece of Paper: Practical Advice for Documenting Conflict Waivers


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(ModelRules1.7and1.9). 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, ALAS, our ethics and loss prevention partners, and 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.)

Originally Published in Loss Prevention Journal, Volume XXV, Number 2 in Summer - 2014.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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