2. Conflict Waivers
The existence of an actual or potential conflict does not necessarily mean that the
lawyer cannot represent the client. Some
conflicts can be waived. 2 Such waivers, however, require that the lawyer obtain the
informed consent of each party involved in
the actual or potential conflict. 3 In most
cases, the Ethical Rules require that the
waiver be documented in writing. 4 And
some require that the affected client or
clients evidence their consent by written
signature. 5
In every case, regardless of whether the
Ethical Rules require written consent, 6 it is
in both the lawyer’s and the clients’ best
interest to make sure that the required dis-
closures and waivers are in writing. Once
the lawyer determines that appropriate dis-
closures can be given to obtain a proper
waiver of a conflict, the lawyer must disclose
to the affected clients sufficient relevant
information for the client to make an
informed decision. 7 Having the disclosure
of relevant conflict information spelled out
explicitly in writing eliminates (or at least
reduces) any future dispute about what
information the lawyer disclosed and
whether the disclosures met the lawyer’s
ethical requirements. It provides clarity for
the affected clients and protection for the
lawyer.
In addition, though the Ethical Rules do
not necessarily require the lawyer to have
the client sign an acknowledgement of, and
consent to, a conflict waiver, 8 it is nonetheless good practice to have the client do
so. First, requiring the client’s signature
increases the likelihood that the client will
actually read the document—particularly
since the signature acknowledges that the
client has done so. Second, the client’s signature establishes that the client received
the disclosures of the conflict and consented to it, avoiding disputes over those issues.
Thus, the signed document can serve both
to deter a lawsuit regarding whether adequate disclosure was given and consent
obtained and as powerful evidence in
defense of such a claim. 9
The written communication of the con-
flict should be clear and thorough, identify-
ing all adverse (or potentially adverse) par-
ties and explaining the conflict (or potential
conflict) in sufficient detail such that a rea-
sonable person could make an informed
decision as to whether to waive the conflict.
The information provided to each affected
client should be essentially the same and
should address fairly the risks and advan-
tages involved for each affected client. The
writing also should explain all limitations
that the actual or potential conflict may
have on the representation of each affected
party, including possible effects on loyalty,
confidentiality, and the attorney–client
privilege.
In the case of an actual conflict, it can be
helpful to recommend that the affected
clients consult with independent counsel
who can provide them with objective advice
on the issue. For some conflicts, such advice
is required10; for every actual conflict, it is
good practice. The idea is that a third-party
lawyer can provide the client with objective,
unbiased advice as to whether the conflict is
one for which a lawyer could reasonably
provide competent and diligent representation to each of the affected clients and
whether the client should waive the conflict—avoiding future claims that the
engaged lawyer should not have requested
the waiver of conflict in the first instance.
3. Non-Engagement
of Potential Client
A lawyer may decline the representation of
a potential client for many reasons—a conflict of interest; the potential client’s inability (or unwillingness) to pay the lawyer’s
fees; an initial assessment that the potential
client’s case lacks merit; or even the lawyer’s
inability to take on the engagement at the
time. But even though the lawyer has
declined representation, the “goodbye” as
the declined client walks out the door (or
hangs up the phone) may not be the last the
lawyer hears from him.
The existence of an attorney–client relationship rests on the reasonable understanding of the client, and not the formalities of engagement. As a result, clients can
claim the existence of such a relationship
based on their reasonable interpretation of
their meeting or conversations with the
lawyer. 11 And to the extent that those interactions can give rise to a reasonable belief
Documenting
the Client
Relationship
Protecting Yourself and the Client
BY PAUL L. STOLLER
