Lawyers sometimes doubt the effectiveness of advance waivers of future conflicts, particularly when the waiver is broad and does not specify potential adverse parties or representations. The recent trend nationally, however, is to enforce such waivers, at least where the client is sophisticated and has independent counsel evaluate the waiver.

One recent important decision evidencing this trend is Galderma Laboratories, LP v. Actavis Mid Atlantic LLC, Case No. 3:12-cv-2038 (N.D. Tex. Feb. 21, 2013). This column examines the enforceability of advance waivers of future conflicts, particularly in Galderma.

As-Needed Conflict Waivers. Ordinarily lawyers seek conflict waivers when a disqualifying conflict – a conflict that must be resolved for a representation to continue – has arisen. Then, as discussed in my October 2012 column “Resolving a Conflict of Interest,” the Missouri Rules of Professional Conduct normally require the lawyer to obtain an affected client’s “informed consent confirmed in writing” to assume or maintain the conflicted representation. See, e.g., Mo. S. Ct. R. 4-1.7(b)(4).

For an as-needed conflict waiver to be effective, the lawyer must adequately address three aspects with each affected client: (1) the circumstances giving rise to the conflict; (2) the risks created by those circumstances; and (3) reasonably available alternatives to the conflicted representation.

Advance Waivers of Future Conflicts. When a lawyer seeks an advance consent to future conflicts, instead of an as-needed waiver of a present conflict, uncertainty about future circumstances and risks complicate obtaining a client’s informed consent. The lawyer and client must speculate who may be adverse or what representations may arise, and there is an increased likelihood the conflict that actually does arise was not previously considered.

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