A lawyer may waive future conflicts with a client in certain situations, but should think long and hard before doing so.
I am representing a client and I want to protect myself in case there is any future conflict. Can I, in my fee agreement, have a waiver of future conflicts for a client?
The better practice for a lawyer is to worry about the client’s representation now and not worry about a future conflict of interest. Every lawyer should remember that law is still a profession, not a business. The lawyer’s focus is on what is good for the client, not necessarily what is good for the lawyer. If a lawyer believes there may be a future conflict of interest in a case, then the lawyer should be upfront with the client and perhaps not take the case.
Having said that, the starting point is Rule of Professional Conduct 1.7, which is the general conflict of interest rule. That rule does not discuss, in its substantive section, future conflicts of interest, but talks generally of conflict of interest and the concept of concurrent conflict of interest.
Concurrent conflicts occur if there is directly adverse representation between one client and another, or if there is a significant risk that representation of a client will be materially limited by a lawyer’s responsibilities to another client, other people or the lawyer him or herself. There can be waivers under certain circumstances. There must always be informed consent if there is going to be a waiver.
Although the substantive rule does not specifically address future conflicts, Comment 22 to Rule 1.7 discusses future conflicts of interest. That reads as follows:
“Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph B.”
Paragraph B in Rule 1.7 is the waiver rule. That allows a lawyer to have a client waive any conflict if the lawyer reasonably believes he or she will still be able to provide competent and diligent representation, the representation isn’t prohibited by law and does not involve the assertion of a claim of one client against another represented by the lawyer in the same litigation and each of the affected clients gives informed consent.
In other words, a future conflict can be waived in the same manner as any other conflict.
Returning to Comment 22, the court notes the problems with such conflicts. These waivers of future conflicts are not favored under the rules.
“The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representation that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.”
Therefore, the lawyer has to be sure the client understands the extent of the conflict that might arise in the future. Sometimes it might be a wise idea to tell the client to get a second opinion. Although second opinions sound great in theory, in practice it is not necessarily the best idea because a second opinion sometimes results in a termination letter with the client going to the new lawyer.
Comment 22 also notes that any consent to future conflicts that is “general and open-ended” will not usually be considered a valid consent. The comment does note that if the client is a sophisticated user of legal services, then the consent may be more effective than if the client is not. Comment 22 ends with the following statement:
“In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under Paragraph B.”
This comment is really the bottom line. If there is a direct conflict and the lawyer cannot provide good services, then the conflict is nonwaivable. There can never be a consent. That applies to past, present and future waivers.
Every lawyer who wants to venture into the area of future waivers of conflict should be aware that the more detailed the waiver agreement, the more likely it will succeed. But it has to be in language that can be understood, unless the client is sophisticated.
Finally, every lawyer should be aware that a client can revoke conflict of interest waivers. The conflict waiver can be revoked at any time. The same revocation applies for future conflict of interest waivers. That goes back to the concept of law being a profession and not just a business. Any lawyer who obtains a waiver of future conflict must also be aware that the client can change his or her mind and revoke the consent.
In conclusion, it does appear that future conflicts can be waived under certain circumstances, which will require an informed consent and a waiver assuming the conflict is not such that there can never be a waiver. But every lawyer ought to think long and hard about these future waivers. Future waivers are for the benefit of a lawyer and not the client. If that is the case, the future waiver ought not be sought.
A lawyer must be careful not to obstruct justice when advising witnesses on how to handle questioning from opposing counsel.
I have an upcoming criminal case and am subpoenaing a number of witnesses. I know the district attorney will send detectives out to interview the witnesses and I have asked people not to talk to the detectives. Is there anything unethical about that?
One problem many lawyers, particularly young lawyers and sometimes assistant district attorneys, have is that they start to view the witnesses, including victims, as their clients. They are not. The same issues happen when a lawyer is trying a case and there are many witnesses, particularly family members or friends of the defendant. A lawyer starts to look and believe he or she is representing everyone. That is not the case.
Under the Rules of Ethics, a lawyer cannot prevent access to evidence. The lawyer can’t tell witnesses not to talk to another lawyer except with rare exception.
The pertinent Rule of Professional Conduct is Rule 3.4(d). That rule is entitled “Fairness to Opposing Party and Counsel.” Under subsection (d), it is noted as follows:
“A lawyer shall not … (d) request a person other than a client to refrain from voluntarily giving relevant information to another party unless; (1) the person is a relative or an employee or other agent of a client; or (2) a lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information and such conduct is not prohibited by Rule 4.2.”
Therefore, there are exceptions. A lawyer can tell a cousin or mother or father or brother or sister of a client that he or she does not have to speak to opposing counsel. But the lawyer cannot tell any other witness.
Comment 4 to Rule of Professional Conduct 3.4 notes as follows:
“Paragraph (d) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client.”
The lawyer has to be very careful. Telling witnesses not to cooperate could be considered obstruction of justice under certain circumstances. Further, there is no reason for the lawyer to do that. A skillful opposing attorney in the courtroom will bring out that the lawyer asked the witnesses not to talk to him or her. That creates the impression the lawyer was trying to hide something. That can have a negative impact and affect the ultimate verdict.
Finally, a lawyer can tell a witness to be careful of what he or she says and to be truthful. The lawyer can tell the witness to carefully read any statements the detectives might take to make sure they are accurate.
The bottom line is that trials are adversarial proceedings. There are some people who can’t be contacted, i.e., people who are represented by the respective sides. But there is no prohibition about both sides contacting witnesses to speak to them prior to their testimony. That helps to be sure justice is present and helps to make the system function properly.
For a lawyer to preclude that in many ways undermines the fairness and integrity of the process. It also departs from the concept of professionalism and goes more to the concept of a business where winning or profit is everything. Law hasn’t reached that stage yet and hopefully never will.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.