Increasingly, law firms, especially larger firms, are seeking waivers of possible future conflicts of interest with their clients when they undertake a representation, i.e., the client agrees to waive conflicts its attorneys may encounter in the future at a generally unspecified time and, often, of an unspecified nature.
Future conflicts, however, are difficult and often impossible to predict. As a result, advance waivers may not be enforceable and attorneys must be careful in drafting them. Advance waivers also implicate a number of Rules of Professional Conduct (RPCs), including: 1.7(a)(1) [representation of directly adverse concurrent clients]; 1.7(b) [representation notwithstanding a conflict]; 1.6 [preservation of client confidences]; and 1.9 [duty to former clients].
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