Conflict waiver letter should include:
1. the identity of the other party/client who is or potentially may be adverse and represented by the lawyer;
2. an explanation of the conflict with sufficient factual and legal detail to ensure that a reasonable person could make an informed
decision; and
3. an explanation of all risks to the affected clients and all limitations on the representation of the client due to the representation
of parties with actual or potential conflicts.
If there is an actual conflict, recommend that the client retain independent counsel to review the conflict.
Conflict Waivers
A non-engagement letter should include a state-
ment that the lawyer does not represent the
potential client and is not his/her lawyer. It
should also:
• inform the client that the lawyer will not
monitor matter or changes to circumstances;
• identify all potentially information received
from potential client;
• confirm that the lawyer did not undertake an
investigation on behalf of the potential client;
• confirm that the lawyer did not provide legal
advice to the client; and
• identify potential deadlines relating to the
matter—statute of limitations/filing/notice
of claim.
Non-Engagement Letter
Clear:
• “to represent you in State v. Jones.”
• “to write a demand letter to ….”
• “to advise you regarding the tax
consequences of …”
Unclear:
• “represent your interests”
• “to represent you in your acquisition of [X]”
Scope of Engagement
In addition to normal conflicts disclosures:
• Discuss the ramifications if the conflicts come
into existence and address how they can or will
be handled if they do.
• Explain that withdrawal may become necessary
for one or more of the jointly represented
clients in the event of an actual conflict.
• Explain what happens in the event of a withdrawal.
• Disclose the implications of joint representation on the attorney–client privilege.
• Client communications are not privileged as between the joint clients. In the event of a conflict, other clients may be able
to use any information that the client provides to the lawyer.
See Ariz. Ethics Op. 07-04 regarding the disclosures required to obtain a client’s informed consent to joint representation.
Joint Representation
Dear [Name]:
It was a pleasure speaking with you regarding our potential representation of you with respect to [identify matter specifically]. This letter is to confirm that neither I nor this firm will be able to represent
you with respect to that matter. We further confirm that we do not
currently represent you in any other matter.
Because we do not represent you on any matter, we cannot practi-
cally monitor any changes in the law or your circumstances as they
might affect the matter we discussed. We must, therefore, disclaim
any duty to do so.
We do not believe that we have obtained any information from or
about you or your potential matter that is confidential. We did no
investigation of the facts you described and gave no legal advice with
respect to the matter we discussed.
[For lawsuits or claims:] If you wish to pursue your claim with
another lawyer, you should keep in mind that there may be important deadlines involved in your claim, including a date by which you
must file such a claim. If you fail to file suit or take other appropriate
action in a timely manner, you may lose permanently some, if not all,
of your rights to pursue the claim. Accordingly, you should act
promptly if you wish to pursue your claim.
As we discussed, the statute of limitations for [type of claim] is
[length of time] years. Based on the understanding that [event]
occurred on or about [date], the statute of limitations could run
as early as [date]. [If there is a claim against a governmental
entity for which a notice of claim is required, include information
as to notice of claim deadline.]
Sincerely,
Non-Engagement Sample Letter
Document Practice Pointers
—continued on p. 44
