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Comment 22. In using those forms, however, lawyers need to be
attentive to the crux of Comment 22: effective informed consent
often turns on the particular facts discussed (and documented)
with the client involved, which only the firm handling an individual situation can incorporate into even the soundest template.
Comment 22 suggests four principal limitations.
First, Comment 22 stresses that an advance agreement cannot
waive a nonwaivable conflict. For example, a law firm could not use
an advance waiver to represent both sides in the same litigation.
Second, Comment 22 notes that an advance agreement
must also meet the general requirements for waivers under
RPC 1. 7(b). In particular, firms using an advance waiver also
need to obtain matter-specific waivers from any other clients
the law firm is representing on the other side of the client that
granted the advance waiver. To return to our opening example,
the law firm would need to obtain waivers from its other
high-tech clients negotiating against the industry leader to
complete the waiver process.
Third, the ABA ethics opinion on advance waivers—05-436
(2005)—that interprets the identical comment under the
corresponding ABA Model Rule notes (at 5) that an advance
MARK J. FUCILE of Fucile & Reising LLP handles pro-
fessional responsibility, regulatory, and attorney-client
privilege matters and law-firm-related litigation for
lawyers, law firms, and legal departments throughout
the Northwest. He also teaches legal ethics as an
adjunct for the University of Oregon School of Law at its Portland
campus. He can be reached at 503-224-4895 and Mark@frllp.com.
waiver, “without more, does not constitute the client’s informed
consent to the disclosure or use of the client’s confidential
information against the client.” Because all multiple-client
conflict waivers under RPC 1. 7(b) must involve unrelated
matters, the risk of confidential information being used
inappropriately is likely low. In some circumstances, however,
a law firm may wish to consider voluntary internal screening of
the respective teams handling the matters on each side of an
advance waiver to further lessen this risk.
Fourth, an advance waiver is limited to its terms.
Therefore, if a conflict surfaces later that is beyond the scope
of the advance waiver, that new conflict must be analyzed
and addressed with its own waivers—assuming the conflict is
waivable and the clients involved consent.