In the not-too-distant past, a “large” firm had as many as 200 lawyers, supported by a sprinkling of rainmakers and a number of “service partners.” In today’s legal environment, 200 lawyers is a midsized firm, large firms have 600 lawyers or more and every partner needs a substantial book of business. These realities make clearing the firm’s conflict check both more difficult and more important. The proliferation of intra-firm conflicts and the pressure to bring in business has led to an increase in the use of advance waivers of conflicts. In Celgene Corp. v. KV Pharmaceutical Co ., Magistrate Judge Madeline Cox Arleo of the District Court for the District of New Jersey rejected an advance waiver and granted a motion to disqualify counsel for the defendant, explaining that an advance waiver must be based on informed consent and that such consent must be knowing, intelligent and voluntary. The problem is: How can a waiver of an unknown conflict that may or may not arise in the future meet those criteria?

In Celgene Corp. v. KV Pharmaceutical Co. , Buchanan Ingersoll & Rooney entered its appearance as counsel for defendant KV Pharmaceutical, adverse to its longtime client Celgene. Buchanan Ingersoll had been representing Celgene for several years in a securities litigation matter and in a Thalidomide matter, neither of which involved KV Pharmaceutical. The firm’s representation agreements with Celgene, entered into at the outset of both matters, included provisions in which Celgene prospectively consented to waive certain conflicts that might arise, including representation of adverse parties in “substantially unrelated matters.”

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