SC Lawyer, March 2009, #2. Conflicts Waivers [sic?]-A Primer.

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SC Lawyer, March 2009, #2.

Conflicts Waivers [sic?]-A Primer

South Carolina LawyerMarch 2009Conflicts Waivers [sic?]-A Primer Here's a quiz: What are the three most important ethical issues that lawyers face? Answer: Conflicts, conflicts, conflicts.

When dealing with conflicts of interest, lawyers often consider the possibility of obtaining a "waiver" of the conflict. While the term is useful as a short-hand expression, it is inaccurate and misleading in three respects. First, the rules of ethics do not allow a client simply to waive a conflict; the client must give informed consent. Second, the client's consent must be confirmed in writing. Finally, in some instances conflicts are not consentable.

Consider the situation in which a lawyer is asked to represent multiple parties who are forming a business. What must a lawyer do to obtain an effective consent to a conflict of interest?

Informed consent. S.C. Rule of Professional Conduct 1.0(f) defines informed consent as "the agreement by a person to a proposed course of conduct after the lawyer has communicated reasonably adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Comment 6 to SCRPC states that informed consent "[o]rdinarily ... will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives." With regard to conflicts of interest involving multiple clients, comments 16, 17 and 27-31 to SCRPC 1.7 provide further guidance on informed consent. In particular, comment 16 states that when "representation of multiple clients in a single matter is undertaken, the information should include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved."

Consider the following letter to prospective clients:

Dear [name]:

This letter will confirm our understanding about my role in the formation and operation of [name of entity], a corporation that will be...