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45 Law Prac. 18 (2019)
Use Sharp Tools Carefully

handle is hein.journals/lwpra45 and id is 20 raw text is: HIGHLIGHTS SIMPLE STEPS Use Sharp Tools Carefully By Lucian T. Pera AS WITH EVERY PROFESSION or trade, we lawyers use all manner of tools. One tool we all have in our toolboxes is the advance waiver of conflicts of interest-a current waiver of a conflict of interest that does not currently exist but may arise in the future. In the right situation an advance waiver can serve well the interest of both lawyer and client. It may allow the lawyer to take on a new client or matter he or she might otherwise need to decline. It might allow the lawyer to protect his or her future ability to continue to represent, or remain available to represent, an existing client in future matters. And it may also allow that new client access to his or her lawyer of choice, or protect the free choice of counsel of the lawyer's existing or expected client. But a recent California Supreme Court decision reminds us that many tools have to be used carefully, and for the right purpose, or the user may get hurt. The first-and pretty much only-principle governing advance waivers of conflicts of interest is simple. A client can generally waive a conflict of interest that may arise in the future if that particular conflict of interest to be waived can ethically be waived and if the lawyer and client together have in their minds the conflict of interest that actually does later arise. Yes, all they have to do is predict the future and get it right. And detail does matter. Advance waivers are particularly effective in certain areas of law. They work well in niche practice areas, for example, where many clients need help only a few practitioners can offer or areas of law with repeat players or with clients with complex and overlapping relationships. Think tax law, entertainment law and health-care law. The most common example may be the business lawyer being hired by a bank to close its loans who asks the bank to allow her to also represent borrowers negotiating loans with the bank. That common conversation often leads to an advance waiver, limited only by the bank's insistence that its new lawyer not sue the bank. All of this belies the notion that advance waivers are just a tool for BigLaw. That's just not true. Now, back to California. 18 Law Practice January/February 2019 www.lawpractice.org NEWS & EVENTS

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