Philadelphia partner Larry Fox wrote a letter to the editor of the American Bar Association’s quarterly journal, Litigation. In his letter, Larry disputed one particular facet of Lucian Pera’s article, “The Ethics of Joint Representation,” published in Litigation’s Fall 2013 issue. Larry’s letter was subsequently published, along with Pera’s response.
It is Pera’s position that in cases involving joint representation, if a lawyer has secured advance waivers of conflicts and confidentiality from the clients involved, he or she can preserve one or more of the engagements should the relationship between clients sour. Larry contends that it is this “enthusiastic endorsement of such waivers when real conflicts have developed between coclients that is most unfortunate.”
Larry, the George W. and Sadella D. Crawford Visiting Lecturer in Law at Yale Law School and the Supervisor of the Yale Ethics Bureau, objected to Pera’s assertion for the following reasons:
First, the rules of professional conduct require all waivers of conflicts to be on “informed consent,” which cannot be achieved before an conflict has been identified. Second, the typical client selected for abandonment will be the essentially unrepresented employee who could not possibly foresee the predicament an advance waiver presents. Third, there is no authority for a prospective waiver of confidentiality. Fourth and finally, Mr. Pera’s position that an advance conflict waiver must be clear that the lawyer is authorized to use the former client’s confidential information, even adversely, encourages lawyers to seek, and act upon, an opportunity to betray a client.
Mr. Pera responded, elaborating on his position and stating that while Larry opposes advance waivers of conflicts of interest “viscerally and virtually uniformly,” he continues to believe they are a “useful tool.”