South Carolina Lawyer
SC Lawyer, March 2006, #2.
The new rules and you
South Carolina LawyerMarch 2006The new rules and youBy John FreemanAs noted in the last issue of the South Carolina Lawyer, the Supreme Court's latest amendments to the Rules of Professional Conduct are now effective. They're available on the Web at www.judicial.state.sc.us/courtReg/newrules/NewRules.cfm. Last issue's Ethics Watch focused on changes tied to money matters affecting law practice. A number of additional ethical refinements are discussed in this month's column.
Conflicts of interest
The old guidepost in dealing with waivable conflicts used to be that the client consent "after consultation." The new rules are more specific, introducing two new defined terms found in the new "terminology," Rule, Rule 1.0. These terms are "informed consent" and "confirmed in writing." Conflict waivers now always require informed consent, confirmed in writing.
Informed consent denotes "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." The confirmatory writing need not be signed by the client and could consist of an e-mail sent by the lawyer promptly confirming the client's oral informed consent.
The smart lawyer recognizes that the writing requirement now is included in the ethics rules both for the lawyer's protection and the client's. If a dispute erupts between a lawyer and client focusing on the lawyer's conflict of interest, proof of a waiver may be crucial. Proving the legitimacy of an oral waiver by a former client who has brought suit based on an alleged conflict is close to Mission Impossible. Almost never would a lawyer sued in a conflict case involving an oral waiver be able to escape on a motion for summary judgment. The existence of a written waiver, in contrast, offers the glimmer of a possibility that hostilities can be ended based on a motion, rather than after a jury's deliberation. The bottom line is this: written waivers are good for both clients and lawyers facing potential conflicts.
Arbitration agreements are not automatically forbidden
Rule 1.8(h) deals with lawyers contracting to limit their liability to their clients. A new...