By Mark J. Fucile
EFFECTIVE SEPT. 1, 2018, A NEW COMMENT, COMMENT 22, WAS ADDED TO WASHINGTON RULE OF Professional Conduct (RPC) 1. 7 that specifically addresses advance waivers of future conflicts. The new comment is based on its ABA Model Rule counterpart and had a somewhat unusual history. The comment clarifies an ambiguity that had crept into Washington practice concerning the use of advance waivers. The new comment generally permits them—subject to several limitations. In this column, we’ll first touch on the rather circuitous path that advance waivers took in Washington. We’ll then turn to their practical application. Finally, we’ll survey the limitations on their use.
A BRIEF HISTORY
The basic notion of advance waivers is not new. In fact, ABA
Formal Opinion 93-372 discussed them at length 25 years
ago. In a typical scenario, the client involved is prospectively
waiving conflicts that may arise during a firm’s representation
of the client. Advance waivers offer firms the ability to take on
clients who might otherwise present conflicts with existing
clients, and they offer clients access to firms that might not be
available without the assurance of an advance agreement on
conflicts. A ready example is a law firm with special expertise
that primarily represents high-tech startups and routinely
negotiates against an industry leader. If the industry leader
approached the law firm about an unrelated project, the law
firm would understandably be reluctant to take on the work
without an advance waiver in place that would allow it to
continue to represent its primary clientele in negotiations
with the industry leader while also handling the unrelated
project for the industry leader.
When the ABA comprehensively updated its influential
Model Rules of Professional Conduct in the early 2000s,
it added a comment to Model Rule 1. 7—which governs
current client conflicts—that generally authorized advance
waivers. Notwithstanding the 1993 ethics opinion, the ABA
commission that developed the amendments concluded that
the additional clarity offered by a comment would be useful
to lawyers and clients alike. The ABA followed with a new
opinion in 2005—Formal Opinion 05-436—that replaced the
1993 opinion and specifically relied on new Comment 22 to
ABA Model Rule 1. 7.
In the wake of the ABA amendments, Washington
appointed a special committee to make recommendations to
the WSBA Board of Governors and the Washington Supreme
Court. In 2004, the special committee proposed a number of
amendments to the Washington RPCs based largely on the
then-recently promulgated ABA Model Rule amendments.
Ethics and the Law
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