13.11. Advance Waiver of Future Conflicts

Lawyers sometimes seek to avoid conflict of interest rules by getting a client to sign an advance waiver which says that if a conflict of interest arises, the client agrees up front to waive the conflict.  The Rules do not address the validity of advance waivers.  The Restatement (Third) of the Law Governing Lawyers does.  The Restatement takes the position that extremely broad and open ended waivers are likely to be invalid “unless the client possess sophistication in the matter in question and has had the opportunity to receive independent legal advice about the consent.”[1]  Essentially this rule allows companies – who may see a strategic advantage in waiving the conflict (and who have in house counsel to negotiate the advance waivers) – to do so.

Here is an advance waiver provision that a court upheld:

“Our firm has in the past and will continue to represent the clients listed on the attached Exhibit A . . . in matters not substantially related to this engagement.  Accordingly, each Client agrees to waive any objection, based upon this agreement, to any current or future representation by the firm of any of the Exhibit A clients, its respective parent, subsidiaries and affiliates in any matter not substantially related to this representation.  Of course, we will not accept any representation that is adverse to you in this matter.” [General Cigar Holdings, Inc., 144 F. Supp. 2d 1334 (S.D. Fla. 2001)]

[1] Restatement (Third) of the Law Governing Lawyers § 122, cmt. d.