Freivogel on Conflicts
 
 
 
 
Waiver/Consent Forms

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DISCLAIMER:  Lawyers using these forms should do so very carefully to ensure that the language finally used fits the particular situation for which they are designed.  It is not the intent of these forms to suggest or establish practice standards.

NOTE ON SIGNATURES: Most of the forms here contain a provision for signature by the waiving person/entity.  In 2002 Model Rule 1.7 was amended to require only that a waiver be "confirmed in writing."  This does not require the waiving party to sign the waiver.  Many states' rules have adopted this approach.  Several still require the waiving party to sign.  Yet a few other states do not even require a writing.  Check your state's rule on this. 

Forms that Follow:

  • Litigation - Beauty Contest
  • Litigation - Joint/Multiple Representation
  • Advance Waiver
  • Representing Purchaser and Seller
  • Estate Planning - Simultaneous Representation of Husband and Wife
  • Estate Planning - Dealing with other Family Members
  • Creation of New Business - “I Am not your Lawyer”
  • Creation of New Business - Relationship with Minority Shareholders, Limited Partners, LLC Members,  etc.
  • Doing Business with Client - Taking Second Mortgage on House to Secure Fee - Compliance with Rule 1.8(a)
  • Termination of Representation Letter
  • Waivers of Direct Adversity Conflict
  • Lawyer Serving on Board of Client

Litigation - Beauty Contest


    John Smith, Esq.
    ABC Corp.
    1 LaSalle Street
    Chicago, Illinois 60603

    Re:            Proposed Action against XYZ Corp.

    Dear John:

    This is to confirm that you will visit this firm August 1.  You wish to hire a law firm in this city to bring an action against XYZ Corp., and the purpose of your visit will be to evaluate the ability of this firm to handle the action for you.  We understand that you will be interviewing other firms here, as well.

    On the telephone, we discussed the possibility that if you do not hire us, XYZ or some other party in the action may seek to hire us in your case.  We have agreed that at our meeting on August 1 you will not reveal any confidential information to us.  We further agreed that nothing that occurs at the meeting will form the basis for an objection on your part to our representing one of the other parties in the action.

    Thank you very much, and we look forward to our meeting.

    Very truly yours,

    
    Sarah Barnes

    (See the "Initial Interview - Hearing too Much" page at this site.)

    
Litigation – Joint/Multiple Representation

     John Smith, Esq.
    ABC Corp.
    1 LaSalle Street
    Chicago, Illinois 60603

    Mr. Morton Jones
    1 LaSalle Street
    Chicago, Illinois 60603

    Re:            Newton v. ABC Corp. and Morton Jones – Joint Representation

    Gentlemen:

    This is to confirm that this law firm will represent both ABC Corp. and Morton Jones in the captioned action.  We have discussed the potential for a conflict of interest to arise between you.  Neither you nor we have as yet detected a basis for a conflict.  You both wish this firm to represent ABC Corp. and Mr. Jones in order to present a united front and to keep expenses down.  ABC Corp. will pay all legal fees and expenses.  We do not believe that will in any way compromise our ability to represent Mr. Jones fairly and effectively.

    During this joint representation we will share with both of you all information that we gather from either of you and from Mr. Newton and from third parties.  If we learn something from one of you that we think the other needs to know, we will disclose the information to the other.  If we learn something in confidence from one of you that we do not believe is relevant to the other and that the other does not need to know, we will not share the information with the other.

    Conflicts under these circumstances sometimes arise.  One example would be where we discover evidence that one of you may have behaved as alleged by the plaintiff.  Others could be where you disagree on trial strategy or the appropriateness of a settlement.

    In the event a conflict does develop between ABC Corp. and Mr. Jones, this law firm will have the right to terminate its representation of Mr. Jones and continue on behalf of ABC Corp.  We will have the right to take positions adverse to Mr. Jones and use information that we obtained from Mr. Jones during our representation of him.  There may be circumstances where this would not be appropriate, and a court might not permit it.

    This is further to confirm that we have urged Mr. Jones to retain other counsel to review this letter and the arrangement proposed above.

    Very truly yours,

    

    Sarah Barnes

    Agreed:

    Morton Jones:

    ABC Corp.

    By:

    (Caution: this is a highly aggressive letter, particularly the part about being able to stay in the case.  It is based upon the discussion of In re Rite Aid Corp. Securities Litigation v. Grass, 139 F. Supp. 2d 649 (E.D. Pa. April 17, 2001), and Zador Corp. v. Kwan, 37 Cal. Rptr. 2d 754 (Cal. App. 1995).  Obtaining the agreement is one thing.  Defeating a motion to disqualify is quite another.  The tribunal will be most concerned about the sophistication of the individual party and his or her ability to understand the implications of the agreement.)

    
Advance Waiver

    John Smith, Esq.
    ABC Corp.
    1 LaSalle Street
    Chicago, Illinois 60603

    Re:            Advance Waiver for Other Matters

    Dear John:

    ABC Corp. is retaining us to handle a single property tax appeal because property tax appeals constitute a major part of this firm's practice.  In the past we have been adverse to ABC Corp. in both litigation and transactional matters.  We expect to be asked by other clients to be adverse to ABC Corp. in the future.

    ABC Corp. agrees to waive in advance any conflict that might result from our representing another client adverse to ABC Corp. in a matter unrelated to the property tax appeal matter.  This includes matters that might come up during the course of our representation of ABC Corp. and includes litigation adverse to ABC Corp.  We will not take on a matter adverse to ABC Corp. that would involve confidential information obtained from ABC Corp. in the property tax appeal matter.

    Thank you very much.

    Very truly yours,

    

    Sarah Barnes

    Agreed:

    ABC Corp.
    By:

    (While it is clearly not unethical to seek such a waiver, making it stick when the conflict arises is not foregone.  See the discussion of advance waivers at the Waivers/Consents page of this site.  New Comment [22] to Model Rule 1.7, quoted there, emphasizes the need to be specific as to what the future adverse matters might be.  The above letter is not.  If you know what the future matters might be, it would behoove you to state them in the letter.  Note the specific reference to litigation in the form.  Several of the cases disapproving an advance waiver turned upon the failure of the waiver to include a specific reference to litigationFor an excellent review of these issues and a form of agreement probably more effective than the above, see Peter Jarvis, David Lewis, Allison Rhodes, & Calon Russell, A "Safe Harbor" for Future Conflict Waivers, ABA/BNA Lawyers' Manual on Professional Responsibility, Current Report (online) (June 19, 2013).)

Representing Purchaser and Seller

    (Caution!  This is rarely appropriate.  Go to "Commercial Negotiations" at this site for opinions and decisions on this practice.)

    
    Mr. Clyde Owen
    100 Main Street
    Jonesville, Illinois 60521

    Ms. Molly Bright
    222 Grant Street
    Jonesville, Illinois 60521

    Re:       Waiver for Joint Representation in Sale of Molly’s Hardware, Inc.

    Dear Clyde and Molly:

    This firm has for some years represented each of you and your respective businesses.  Now, Clyde wishes to purchase Molly’s business.  You have both asked this firm to represent both of you in the transaction.  I explained it would be best if you each sought another lawyer or law firm.  This is particularly true because we have obtained much confidential information from each of you over the years.  Some of the information from one of you may be important to other in evaluating the terms of the sale.

    You both have persisted in getting us to act for both of you, because that will avoid the cost of educating new lawyers and the cost of involving two law firms.  We have agreed to do so.  We expect you to agree on the principal terms of the sale without our involvement.  This is particularly true as to price.  We have explained to you that we must be forthcoming to each of you about what we know about, or learn from, the other, to enable you to make informed judgments about the transaction.  There cannot be any secrets among us relating to this transaction.

    If, during the transaction, we believe we cannot represent both of you fairly and effectively, we will have to withdraw from representing both of you.

    I urged you both to seek the advice of other lawyers about the wisdom of proceeding on this basis.  If you agree to the above, please sign at the space below.

    Very truly yours,

    

    Sarah Barnes

    Agreed:

    Clyde Owen:

    Molly Bright:

   (Note: most states adopted ABA Model Rule 2.2.  It appears to apply to most multiple representations in transactions.  It also appears to require that whenever multiple clients have a falling out, the lawyer must withdraw completely.  It does not allow for a consent for the lawyer to continue on behalf of anyone in the transaction.  That is why the letter says the lawyer will withdraw from representing both parties.  The ABA House of Delegates removed Model Rule 2.2 in February 2002, and substituted more specific comments to new Rule 1.7.)


Estate Planning – Simultaneous Representation
of Husband and Wife


     Mr. and Mrs. James Smith
    1 Maple Street
    Jonesville, Illinois 60521

    Dear Mr. and Mrs. Smith:

    We will be representing both of you in the preparation of your estate plans.  We encouraged you to obtain separate counsel, but for reasons of expense, you asked us to represent both of you.

    It is the policy of this firm to seek an agreement in such cases regarding the sharing of confidential information.  If we learn anything from one of you that we believe the other needs to know in connection with our representation, we will tell the other.  If we learn something in confidence from one of you that we do not believe is germane to the representation of the other or that the other does not need to know, we will not tell the other.

    Very truly yours,

    

    Sarah Barnes

    Agreed:
    James Smith:

    Emily Smith:

    (This provision would be less jarring if tucked into an engagement letter containing the scope of the engagement and provisions relating to fees.)

    
Estate Planning – Dealing with other Family Members

     Mr. James Smith, Jr.
    11 Elm Street
    Jonesville, Illinois 60521

    Re:            Representation of Your Parents

    Dear Jim:

    As you know we have been representing your parents on estate planning and other matters for many years.  You have now, for the first time, retained us to revise your will and trust.  You and I have discussed the difficulties of representing multiple family members and have agreed upon an approach to handling family information. 

    First, while we have no current information that would suggest this would happen, one or both of your parents could ask us to make changes in their estate plans to your disadvantage.  You agree that we may follow your parents' instructions in this regard.

    Moreover, any information regarding your parents’ affairs will remain confidential with us.  That means, for example, if either of them takes some action with respect to his or her estate or property that is detrimental to you, we will not disclose that action to you.  We would hope and expect that various members of your family will exchange information where appropriate.  This will not be our role, however.

    Very truly yours,

    

    Sara Barnes

    Agreed:

    James Smith, Jr.:

    (Note: the above assumes the son already knows that Barnes represents his parents.  What if the son does not know?  In that case, Barnes could not get the son's consent without disclosing that she represents the parents, something the parents may not want the son to know.  And, Barnes cannot go to the parents for consent to tell the son without disclosing to them that she intends to represent the son, something the son may not want the parents to know.  Solution?  There may not be one.)

    
Creation of New Business – “I Am not your Lawyer”

    (Note: this is a very important letter, and you should always write it, particularly where you have met with people during planning meetings that you have no intention of representing.)

    
    Mr. Owen Smith
    999 N. Barksdale St.
    Jonesville, Illinois 60521

    Re:    Who Will Be Clients, and Who Will not Be     

    Dear Owen:

    It was good to meet you yesterday.  You and Ned Green are going to start a new business, tentatively called Green’s Cards.  It will probably be a corporation; we are looking into that.  The purpose of this letter is to confirm our conversation yesterday, during which I informed you that this firm will be representing Ned and the new company.  We do not represent you personally.  You will need to consult with your own lawyer on issues relating to you.

    We understand that you will be the COO of the new company.  We expect to have much contact with you in that role.  Please understand, however, that in that role you, personally, will not be our client.

    Thank you very much, and we look forward to working with you.

    Very truly yours,

    

    Sarah Barnes

    Agreed:
    Owen Smith:

    (Go to "Joint/Multiple Representation" - "Unintentional" Joint/Multiple Representation at this site.)

    
Creation of New Business –
Relationship with Minority Shareholders or Limited Partners


    
    Mr. Ralph Newland
    444 N. Vine St.
    Jonesville, IL 60521

    Re: Formation of Green’s Cards, Inc.

    Dear Mr. Newland:

    We understand that you will be one of several minority shareholders of Ned Green’s new company.  As Green’s Cards’ counsel we will have to communicate with you from time-to-time.  While we have have never met you, we did want to make sure that there were no misunderstandings about whom we are representing.  Our clients are, and will continue to be, Ned individually and Green Cards, Inc.  We do not represent, and will not be representing, any of the minority shareholders, directors, or employees of the company.

    Very truly yours,

    

    Sarah Barnes

    (It is our view that personal contact with “non-clients” creates the most potential for misunderstandings about who represents whom.  In the case of closely held entities, misunderstandings may arise even absent personal contact.  Thus, a letter like this would seem advisable, where there are  minority shareholders, limited partners, minority members of L.L.C.s, and so forth.  Go to "Joint/Multiple Representation" - "Unintentional Joint/Multiple Representation" at this site.)

    
Doing Business with Client – Taking Second
Mortgage on House to Secure Fee –
Compliance with Rule 1.8(a)


     Mr. Miles Prescott
    666 N. Ross St.
    Jonesville, Illinois 60521

    Re:       North v. Prescott – Change in Fee Arrangement

    Dear Miles:

    In light of the slow-down at your business and your inability to pay our fees when due, we have agreed that you will convey to us a second mortgage on your home as security for the payment of our fees.  We have estimated that our remaining fees will be approximately $50,000, so the mortgage will be in that amount.  We will charge interest at the rate of X% per year on fees for which payment is late.  We asked you to ask your accountant what a fair rate would be, and that is the rate he gave you.

    What this means is that if you are unable to pay our fees on the schedule we have agreed upon, we could foreclose on the second mortgage.  If we did that, it would be financially disruptive for you and could even cause you to lose your home.

    We want you to consult with another lawyer before proceeding with the mortgage transaction.  Please do this within the next two weeks, so that we can proceed.  If you need more time, let us know.  You have a right not to see another lawyer, but we believe you should.

    When you are ready to do so, please sign the copy of the letter at the place indicated on the bottom.  Thank you very much.

    Very truly yours,

    

    Sarah Barnes

    I have read the above and I agree to it.  I believe that I understand it.  I (did) (did not) review this with another lawyer.  I had sufficient time to do so.  Miles Prescott

    (We believe this letter complies with Model Rule 1.8(a).  Do not attempt such a waiver without reviewing the relevant state’s version of that rule.  It is our belief that all “mid-stream” fee changes should comply with that rule.)

    
Termination of Representation Letter

     Mr. Miles Prescott
    666 N. Ross St.
    Jonesville, Illinois 60521

    Re:       North v. Prescott – Conclusion

    Dear Miles:

    Finally!  All the appeals are over, and you have paid our fees.  You have treated this firm very well, particularly in agreeing to give the second mortgage.  We are grateful your cash position improved, and we were able to cancel the mortgage.

    There is nothing left to be done, and our representation of you has ended.  We would very much like to serve you in the future, if that becomes necessary.  If you need our services in the future, give us a call, and we will prepare a new engagement letter.

    Very truly yours,

    

    Sarah Barnes

    (The purpose of the letter is to avoid the inference that the firm is going to be looking out for the former client.  It is also to make clear that the former client is not a current client for conflict of interest purposes.  The above form is not “perfect.”  A more effective letter would have said:

The case is over, you have paid our fees, and you are no longer a client.  That means we have no further duty to look after your interests on any matters.  That also means we are free to sue you for other clients on matters not related to the completed lawsuit.

Thus, the better the letter, the worse the marketing.  For a discussion of when a "current client" becomes a "former client," click
here.)

    
Waivers of Direct Adversity Conflict

    (Situation:  Bradley Clark is one of several passengers on an Ajax Transportation bus.  It has an accident.  Clark is a real estate client of law firm A.  Ajax is a litigation client of A.  Clark and others want to sue Ajax, using law firm B.  Ajax wants A to defend the case.  The following two letters are consents from Clark and Ajax allowing this to happen.)

    
    Mr. Bradley Clark
    1001 Clark Place
    Jonesburg, IL 60521

    Re:       Smith, et al. v. Ajax

    Dear Brad:

    This is to confirm our telephone conversation about the captioned lawsuit.  You and 26 other passengers have hired another law firm to sue Ajax Transportation, Inc. because of an accident that occurred while you were riding on an Ajax bus.

    Ajax has asked my partner, Sarah Barnes, to defend Ajax in that case.  As I explained to you, she cannot do so without the consent of both you and Ajax.  Ajax has indicated that it will consent.  So have you.  I suggested you talk to another lawyer about this before signing a waiver.

    There is nothing about the lawsuit that will cause me not to be completely loyal to you on your real estate matters.  Moreover, while I do not believe this law firm has any information about you that would be relevant to the Ajax law suit, I will ensure that no lawyer working on the law suit will have access to any information that we may have about you.

    If you still agree to waive this conflict, please sign the enclosed copy of this letter and return it to me.

    Thank you very much.

    Very truly yours,

    
    Clyde Slick

    Agreed:
    Bradley Clark

    
    Tom Jones, Esq.
    General Counsel
    Ajax Transportation, Inc.
    111 S. LaSalle St.
    Chicago, IL 60603

    Re:       Smith, et al. v. Ajax

    Dear Tom:

    This is to confirm our telephone conversation, in which I informed you that one of the 27 passengers on your bus and plaintiff, Bradley Clark, is a current real estate client of my partner, Clyde Slick.  We cannot proceed on your behalf in the lawsuit without a waiver from both of you.  Mr. Clark has agreed to sign such a waiver.

    Neither I nor any member of my litigation team know Mr. Clark, and we believe we can represent you with complete loyalty to Ajax.  Accordingly, if you still agree that we can represent you, notwithstanding our unrelated representation of Mr. Clark, please sign the enclosed copy of this letter and return it to us.

    Thank you very much.

    Very truly yours,

    

    Sarah Barnes

    Agreed:
    Ajax Transportation, Inc.
    By:


Lawyer Serving on Board of Client

      (To Chairman of Board)

      Re: Service on Board

      Dear [Chair]:

      You have asked that I stand for election for Director of ABC Corp.  I have obtained the permission of my law firm and agree to do so.  You and I have discussed several issues that my service may raise, and I wish to summarize those issues here.

      My law firm has represented ABC Corp. for many years on a variety of matters.  For the past ___ years I have been the partner at the firm in charge of the firm’s relationship with ABC Corp.  We expect that my firm will continue to represent ABC Corp. as in the past and that I will continue to be the partner in charge.

      Perhaps the single most critical issue of my service as Director is the preservation of the attorney-client privilege.  Communications, oral or written, between ABC personnel and me in connection with my law firm’s providing legal services to ABC should remain privileged.  That is, absent extraordinary circumstances, adversaries to ABC in litigation should not be able to obtain those communications.  However, communications between ABC personnel and me in connection with my service as a Director enjoy no such privilege.  The difficulty is identifying which type of communication is which.  It will be necessary for me, from time-to-time, to remind you and other ABC personnel of what capacity I am operating in, so that you know what is, and is not, privileged.  Caution: there is no guarantee that a court or other tribunal will agree with our characterization of a particular communication as privileged.  We will just have to do the best we can.

      [We have agreed that from the time I am elected as a Director I personally will not participate in any legal representation that my law firm provides to ABC Corp.  That means all my communications with ABC personnel will be as a Director, and none of those communications will be protected by the attorney-client privilege.]

    Another issue relates to the fact that I will not be able to participate in discussing or voting upon some issues that come before the Board because I will have a conflict.  For example, if the issue of what law firm to hire for a major project comes up, I will probably have to absent myself from the meeting and not participate in the decision at all.  Thus, for purposes of some issues, while you may have a quorum, you will be operating without a full board.

    [My service as a Director for ABA Corp. means that my law firm will not have malpractice insurance coverage for any work my firm does for ABC Corp.]

    [Rule 1.8(a) compliance.  I have urged you to discuss my possible service as Director with a lawyer not in my firm, and you have indicated that you have sought the advice of ABC Corp’s. General Counsel.]

    [Other issues may arise that we simply cannot predict.  For example, if my law firm is representing ABC Corp. in litigation and the opponent objects to my partners and associates seeing certain of the opponent’s confidential documents, because I am a Director, we may be limited in how we handle the litigation.]

      Very truly yours,

      Sarah Barnes

    End of Forms

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