18 Geo. J. Legal Ethics 291 (2004-2005)
Free the Lawyers: A Proposal to Permit No-Sue Promises in Settlement Agreements

handle is hein.journals/geojlege18 and id is 299 raw text is: ARTICLES
Free the Lawyers: A Proposal to Permit No-Sue
Promises in Settlement Agreements
STEPHEN GILLERS* & RICHARD W. PAINTER**
I. INTRODUCTION
We value counsel of choice.' But clients cannot always get the lawyer they
want. The lawyer may be too expensive. She may not be taking new clients
because she is planning a long vacation or reducing her practice. The client's
problem may not interest her, or she may dislike the client. It's a free country for
lawyers, too. But not entirely free. Two kinds of ethics rules intrude here. One
kind prevents or impedes the lawyer's availability. The other kind requires it.
In the first category are rules that can keep a lawyer from accepting a new
client because of a conflict, usually with another client that the lawyer, or the
lawyer's firm, may then represent or once have represented.2 The lawyer's
personal interests or those of a partner or relative may separately prevent
representation.3 The conflict rules operate in another way, too. A lawyer or firm
may be free to accept a client but elect not to do so because the lawyer wishes to
remain available to accept anticipated matters that conflict rules would preclude
if the representation were accepted. Consent can remove some conflicts but not
all, either because consent is not allowed or because those whose consent is
required refuse.4
* Emily Kempin Professor of Law, New York University School of Law. Professor Gillers wishes to thank
two LL.M. students, Jenny Austin and Elizabeth Fei Chen, for their valuable research assistance for this Article.
** Guy Raymond and Mildred Van Voorhis Jones Professor of Law, University of Illinois College of Law.
1. Opinions on motions to disqualify lawyers for conflict of interest often refer to the value of counsel of
choice. See, e.g., In re Estate of Janecek, 610 N.W.2d 638, 642 (Minn. 2000) (emphasizing interest in counsel of
choice in concluding that an order disqualifying counsel should be deemed appealable as a final order affecting
a substantial right); In re Guardianship of Mowrer, 979 P.2d 156, 160 (Mont. 1999) (Mowrer must not be
lightly separated from her counsel of choice.); Blumenfeld v. Borenstein, 276 S.E.2d 607, 609 (Ga. 1981)
([T]he right to counsel is an important interest which requires that any curtailment of the client's right to
counsel of choice be approached with great caution.).
2. MODEL RULES OF PROFESSIONAL CONDUCT Rules 1.7(a), 1.9(a), 1.10(a) (2003) [hereinafter MODEL RULES].
3. MODEL RULES Rule 1.7(a).
4. Model Rule 1.7(b) contains limits on the permissibility of consent. See also MODEL RULES Rule 1.7 cmts.
14-17. In criminal cases, the right to the effective assistance of counsel may preclude even informed consent.
United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002).

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