The Model 1.0 rule defines “informed consent” as “an individual`s agreement on proposed conduct after counsel has provided appropriate information and explanations about the essential risks and reasonably available alternatives to the proposed conduct.” How do I get this deal? It`s very careful. First, the fact that the company has been contacted by Company B is confidential to Company B. The company simply cannot disclose this information to someone it chooses without the consent of Company B. Therefore, the first step in the bipartisan consent dance is for the law firm to ask Company B for permission to contact Company A and apply for the waiver. This requirement may be a non-starter. What if the element of surprise is important for Company B? There may be many reasons why Company B does not intend to open a “head up” to Company A, which is preparing to initiate litigation. If, for some reason, Company B refuses to contact Company A, the problem is resolved – the company must refuse to represent Company B. The key to effective consent to a conflict of interest is that the lawyer must inform all affected clients of the potential negative consequences of the conflict and that each client agrees to waive the conflict. But even if the lawyer fully informs each of the clients involved and each client agrees to waive the dispute, the informed consent of each client cannot be sufficient in certain circumstances. There are many reasons why clients wish to consent to a conflict of interest. For example, the conflict of interest may relate to a minor issue that is not central to representation.
A client may want to obtain the services of a particular lawyer and may need an agreement to represent the lawyer. Restatement 122, cot. (b) In a dispute involving multiple plaintiffs or defendants, clients may wish to avoid the costs of keeping lawyers separate for each of the parties involved. Id. Pre waiver declarations have been cancelled if they are too general and involve non-mature clients. For example, correspondence with non-lawyer employees of the client at odds (summarizing claims) was found to be insufficient to ensure “consultation” or “full disclosure.” Florida Ins. Guaranty Ass`n, Inc. v. Carey Canada, Inc., 749 F. Supp. 255 (S.D. Fla.
1990); See Marketti v. Fitzsimmons, 373 F. Supp. 637 (W.D. Wisc. 1974) (where the client is a local union, mere knowledge of the second representation is not sufficient to make a waiver). Similarly, a permanent dismissal of the lawyer from “all the rights, duties, duties and privileges that accrue to his [former] employment,” combined with the lawyer`s agreement, “his pro and con services, as he sees fit” (despite the client`s relative sophistication) for the former client was deemed insufficient to justify the lawyer`s subsequent activity, including the disclosure of confidential information. In re Boone, 83 F. 944 (N.D. Calif.
1897). Instead, according to the court, the release would only be effective if it were “positive, unequivocal and inconsistent with any other interpretation.” Id. at 956. In a recent decision, it was found that general prior authorization for all unrelated matters was not sufficient to waive adversity in litigation, unless it explicitly refers to “litigation. Worldspan, L.P. v. Sabre Group Holdings, Inc., 5 F. Supp. 2d 1356 (N.D. Ga. 1998).
The New York City Bar Association Committee on Professional Ethics concluded in the 2006-1 formal opinion that prior authorizations were authorized, but advised counsel to consider that the extent of disclosure required and the scope of a waiver may vary depending on the client`s level of sophistication.