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    Wisconsin Lawyer
    July 10, 2009

    Information to Include in Conflict Waiver Letters 

    Disclaimer: The brief samples below are not intended to be used as form conflict waivers. All conflict waivers are fact specific, and thus there cannot be adequate form conflict waivers. The samples are not approved by any court or the Office of Lawyer Regulation. They represent solely the author’s opinions and are meant to serve only as examples of the type of information lawyers may consider including in conflict waiver letters.

    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 7, July 2009

    Sample 1: Unrepresented Former Client

    Dear Mr. X,

    This letter confirms our previous conversation about my prior representation of you, my current representation of Mr. Y, and the parcel of farmland you are selling. As you are aware, I represented you in purchasing this farmland from Mr. Z four years ago. Mr. Y has asked me to represent him in the purchase of the same farmland from you. As my former client, you are entitled to expect confidentiality and loyalty from me in connection with those matters in which I represented you. Because Mr. Y has asked me to represent him in the purchase of the same land that I helped you acquire, I am now representing a client whose interests are adverse to yours in a matter that is related to my prior representation of you. This creates a conflict of interest. It is my understanding that you have agreed to waive this conflict of interest.

    In making that decision, you should be aware that, by virtue of my prior representation of you in a substantially related matter, I may have confidential information that may be relevant and useful in my representation of Mr. Y. Because of the relatively straightforward nature of this matter and my prior representation of you, I do not believe that any information I may have gained in representing you in the past poses a substantial risk to you now, but you should consider the issue. Your agreement to waive this conflict does not permit me to disclose any information I may have about you to Mr. Y but instead simply allows me to represent Mr. Y in this matter; I will not disclose any such information without your informed consent nor will I use such information in my representation of Mr. Y. You should also understand that my job is to represent Mr. Y’s interests in this matter and, because you are not my client, I am very limited in the types of questions I can answer for you. I cannot give you legal advice, and I urge you to seek the advice of another lawyer if you have questions about whether it is a good idea to sign this conflict waiver.

    Although I am asking you to agree to waive this conflict of interest, you are not required to do so. If you change your mind and do not agree to waive this conflict, I will not be able to represent Mr. Y in purchasing the farmland from you. If you do agree to waive this conflict, please sign this letter and return it to me.

    Sample 2: Current Client in Connection with Former-Client Conflict

    Dear Mr. Y,

    This letter confirms our previous conversation about my prior representation of Mr. X and my current representation of you in connection with the parcel of farmland you are buying from Mr. X. As you are aware, I represented Mr. X in purchasing this farmland four years ago. As my former client, Mr. X is entitled to expect confidentiality and loyalty from me in connection with those matters in which I represented him. Because you have asked me to represent you in the purchase of the same land that I helped Mr. X acquire, I am now representing you in a matter that is adverse to a former client of mine and is related to my prior representation of that client. This creates a conflict of interest. It is my understanding that you have agreed to waive this conflict of interest. As we discussed, it is also my understanding that Mr. X has agreed to waive the conflict.

    In making that decision, you should be aware that, by virtue of my prior representation of Mr. X, the law presumes that I may have confidential information about Mr. X that may be relevant and useful in my representation of you. In representing you, I will not be permitted to disclose or use any information I may have about you to Mr. X. The waiver of the conflict simply allows me to represent you in this matter. I do not believe that my obligations to Mr. X impair my ability to represent you in this matter, however, and I will represent you to the best of my ability.

    Although I am asking you to agree to waive this conflict of interest, you are not required to do so. If you change your mind and do not agree to waive this conflict, I will not be able to represent you in this matter. I am happy to answer any further questions you might have about this matter. If you would be more comfortable consulting with another lawyer about this conflict waiver, please do so. You are not however, required to speak with another lawyer – it is simply your choice to make. If you do agree to waive this conflict, please sign this letter and return it to me.

    Sample 3: Represented Former Client

    Dear Attorney A,

    This letter confirms my understanding that your client, Mr. B, has agreed to waive the conflict of interest involved in my proposed representation of Mrs. B in their divorce. As you are aware, the conflict arises because I previously represented both Mr. B and Mrs. B in connection with estate-planning matters approximately three years ago.

    You have informed me that Mr. B has had the benefit of your advice with respect to this matter and after discussing the matter with you has agreed to waive this conflict. If that is not the case, please let me know. If in fact you have had the opportunity to consult with your client about this matter and your client agrees to waive the conflict, please have your client sign this letter and return it to me.

    [Note: This sample waiver is brief because it assumes that the former client has the benefit of independent legal advice. A lawyer in such a situation may nonetheless choose to err on the side of caution and draft a more detailed letter.]

    Sample 4: Current Business Client – Screened Unrelated Matter

    Dear Ms. Executive,

    As you are aware, my firm currently represents your company, ABC Inc., in connection with certain tax matters before the IRS. As you also are aware, my firm has been asked to represent XYZ Inc. in connection with negotiations with ABC about the terms of a contract to supply ABC with machine parts. Because ABC is a current client of my firm, you are entitled to expect loyalty from this firm in the sense that we cannot represent clients whose interests may be materially adverse to ABC’s interests in any matter. XYZ’s interests are adverse to the interests of ABC in the contemplated negotiations, and this creates a conflict of interest for my firm. It is my understanding that you have agreed to waive this conflict.

    In deciding whether to waive this conflict, you should consider my firm’s duty of confidentiality to you. We are obliged to keep information relating to our representation of you confidential, and our representation of XYZ in a matter adverse to ABC may cause you to be concerned about the confidentiality of your information. I do not believe that any information relating to our representation of ABC in the tax matters would be relevant to the contemplated negotiations with XYZ, and we will not disclose any information relating to our representation of ABC. Therefore, I do not believe that ABC’s confidential information is at risk. Nonetheless, we have put in place screening measures within our firm, so that none of the lawyers who will represent XYZ in the negotiations will have any access to information relating to ABC’s tax matters, and vice versa. Those screening measures include memoranda and signed agreements from the lawyers and support staff working on the respective matters, secure separation of the physical files, and password protection for information on the firm’s computer system.

    In addition to issues of confidentiality, you should consider for yourself what effect our representation of XYZ will have on ABC. Clients may rightly be concerned that firms may be less vigorous in pursuing their matters when the firm also represents an opposing party. I do not, however, believe that there is any risk that my firm’s representation of ABC will in any way be impaired by our representation of XYZ because the respective matters are unrelated.

    Although I have asked you to waive this conflict on behalf of ABC, you are not required to do so. Should you decline to waive this conflict, my firm would be unable to represent XYZ, and other counsel would represent them in connection with the contract negotiations. I urge you to seek the advice of other counsel of your choice if you so wish with respect to this waiver.

    If you do agree to waive this conflict, please sign this form and return it to me.

    Sample 5: Multiple Representation, Civil Litigation

    Dear Ms. X, Ms. Y, and Ms. Z,

    This letter confirms our prior conversation, wherein I agreed to represent you in connection with your claims against ABC Inc. For me to be able to represent the three of you in this matter, it is necessary that you waive the conflict of interest involved in my representation of all of you in the same matter. The purpose of this letter is to explain the conflict and request your agreement to waive that conflict.

    [Note: For second paragraph, choose either Example 1 or Example 2 below. Example 1 discusses a readily identifiable option that will be precluded by joint representation. Example 2 discusses a situation in which the clients’ interests are generally aligned.]

    Example 1. Because all of you have asked me to represent you jointly in this matter, rather than each of you obtaining your own lawyer, there are certain consequences. Certain options and alternatives will be precluded if I am lawyer for the three of you jointly. In this matter, you might have viable cross claims against each other. As we discussed, I do not believe that any such claim would have significant monetary value, and the benefits of presenting a unified front against ABC and of the likely savings from using one lawyer outweigh the value of such cross claims. However, by you agreeing to joint representation, you are forgoing pursuing those cross claims because I cannot represent one of you against any of the others. This imposes a material limitation on my representation of the three of you and thus creates a conflict of interest for me as your lawyer. I can represent the three of you jointly only if you agree to waive this conflict.

    OR

    Example 2. You have asked me to represent you jointly in this matter, and I have agreed to do so because you share common goals and interests. I do not believe that for you to achieve those goals, one of you must take a position that is adverse to the interests of the others. However, with respect to any issue that may arise in this matter about which you disagree and about which one of you may wish to pursue a course that benefits one but is detrimental to the interests of the others, I cannot advise or assist any of you in pursuing such a course. That is to say, I cannot advocate for your individual interests at the expense of the others. I do not believe that this poses a problem because your interests are currently aligned. I am confident that my representation of all of you will not be limited in this matter, but you should consider these consequences of joint representation in deciding whether to waive this conflict.

    In addition to the material limitation I discussed above, there are other consequences for you in agreeing to joint representation. Because each of you is my client, as your lawyer I owe equal duties of loyalty and communication to each of you. As such, I must share all relevant information with you, and I cannot, at the request of one of you, withhold relevant information from the other clients. That is to say, I cannot keep secrets about this matter among the three of you. Also, lawyers normally cannot be forced to divulge information about communications with their clients because it is protected by the attorney-client privilege. However, because you are joint clients in the same matter, it is likely that in the event of a future legal dispute between any of you about this matter, the attorney-client privilege would not apply, and you would each not be able to invoke the privilege against the claims of each other.

    Further, while your respective positions are in harmony presently and the conflict discussed above is waivable, facts and circumstances may change. For example, one of you may change your mind and wish to pursue a course that is adverse to the interests of the others, and the conflict may become unwaivable. In that case I would likely have to withdraw from representing any of you, and if you chose to hire new lawyers, you would have to bear the expense.

    You are not required to agree to waive this conflict, and you may, after considering the risks involved in joint representation, decline to sign this conflict waiver letter. In that case, I would likely not be able to represent any of you in this matter. In our prior discussion, you each indicated a willingness to waive the conflict, and if that is still the case, please sign this letter and return it to me.

    [Note: This sample is drafted with two different example paragraphs. The first is meant to serve as an example of an explanation of a readily identifiable and specific material limitation. The second is meant to be a more general explanation of the inherent nature of joint representation. The two are not necessarily mutually exclusive.] 

     


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