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Copyright (c) 2000 Georgetown Journal of Legal Ethics
Georgetown Journal of Legal Ethics

ARTICLES: Advance Waiver of Conflicts

Winter, 2000

13 Geo. J. Legal Ethics 289


Richard W. Painter *



The American Bar Association (ABA) "Ethics 2000" Commission is proposing revisions to the Model Rules of Professional Conduct, 1 including the rules governing client conflicts. 2 Among the Commission's proposed revisions is a new comment to Model Rule 1.7 that may allow lawyers and clients to agree contractually that future conflicts shall be waived. 3

This article discusses the circumstances in which lawyers and clients should be permitted to contractually set at the beginning of a representation their own rules governing future conflicts of interest. In appropriate circumstances, advance waivers of conflicts avoid unnecessary and expensive ex-post litigation over disqualification. On the other hand, blanket waivers by unsophisticated clients may reflect asymmetry of information and unequal bargaining power between lawyers and clients. Perhaps most important, advance waiver is difficult to use as a contracting device, if courts and bar associations do not clarify the criteria for determining whether such a waiver is enforceable. Although the Commission's proposed revisions to Model Rule 1.7 are a step in the right direction, this article concludes that more specific language on advance waiver of conflicts should be incorporated into the Model Rules.



Contractarian economics distinguishes immutable rules from default rules. An immutable rule is a rule that cannot be changed by a contractual agreement. A majoritarian immutable rule is suitable for most parties in most situations, whereas a tailored immutable rule is designed for a ...
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