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Let’s put an end to the epidemic of conflicts

By DianeI Karpman

Diane Karpman

This summer, let’s end global warming, poverty, war, obesity and avian flu. But wait! There is an epidemic that plagues the profession that we can do something about — right now. Let’s insert a prospective conflict consent clause into our fee agreements. Clients in disqualification motions usually assert that they were “shocked and astonished” that a conflict arose. Still, we know nothing could be more common than a conflict in the practice of law. Conflicts occur because a popular, successful lawyer has a thriving practice. Clients increase exponentially with the attorney’s growth and fame. Nobody wants an entertainment lawyer without industry connections.

Will an ex ante prospective consent be a complete panacea, or will it only be a placebo? That depends on certain factors. How broad is it? How long does it last? (“Forever?”) How specific is it? Try to make it narrow, short and specific. For example, if you represent competitors, you can anticipate that someone might sue. Also, what kind of a conflict was waived? Is it a joint defense agreement involving representation of a CFO and the company in the same dispute, or an unrelated matter? Was the client a sophisticated consumer of legal services with independent counsel, or legions of in-house lawyers? Did you have a “high quality” discussion about the issue with the client? Then, the courts can factor in a “wild card” known as the “interests of justice.”

Facially, consents appear to favor lawyers. But never forget that consents empower clients to make their own knowing choices. If you support client autonomy, then you support consents. Look at Visa U.S.A. v. First Data (C.D. Cal. 1994) 858 F. Supp. 1442, for language.

Lawyers in unique areas of practice, like mergers and acquisitions, where it’s easy for a client to cause the conflict, routinely use consents. They are useful in “beauty contests,” where you audition for employment, or in chatting with prospective clients.

Perhaps you think this is some kind of new-fangled radical idea. Au contraire, it was unsuccessfully attempted in In Re Boone (1897) 83 F. 944. And, in Maxwell v. Superior Court (1982) 30 Cal. 3d 606, a 17-page consent was sustained where a murderer gave his lawyers the irrevocable right to shamelessly exploit his sensational life story, although that was sort of a right to counsel of choice dilemma.

Maybe a blanket waiver in a retainer will not be a complete miracle cure, but it will impair a client’s ability to credibly claim surprise. When the inevitable conflict occurs, the lawyer will be able to say, “I told you this might happen.” Even if the clause is not fully enforceable, it might provide the lawyer with a crucial bargaining chip mandating that the client be flexible and behave reasonably, even when things could “go nuclear.”

Lawyers are “good guys,” and merely kibitzing with a potential client or taking a one-shot, drive-by client should not forever bar you from representing someone you have represented for decades. Prospective consents protect lawyers by eliminating wild client expectations.

  • Legal ethics expert Diane Karpman can be reached at 310/887-3900 or at
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