This column has looked at the subject of advance waivers of conflicts of interest on several occasions, as new cases have been decided that address this important topic. In an article published on Sept. 12, 2005, I discussed ABA Formal Opinion 05-43; I next considered the topic in the article "Do Advance Waivers Work," New York Law Journal, Jan. 8, 2007, at p. 3; next, on Sept. 8, 2008, I discussed the Celgene v. KV Pharmaceutical, 2008 WL 2937415 (D.N.J.) case; and most recently I considered the subject in the light of the decision in Brigham Young University v. Pfizer, 2010 WL 3855347, (D. Utah), Sept. 9, 2010, in "Conflicts, Conflicts and More Conflicts," New York Law Journal, Jan. 3, 2011.
Now I consider the recently decided case of Galderma Laboratories v. Actavis Mid Atlantic, 2013 WL 655053 (N.D.Tex.), whose critical importance is that, for the first time, the court lays out a road map for how to create an advance waiver that has a realistic prospect of being enforced—at least against a sophisticated client—even over the client's subsequent change of heart.
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