Emeline Hubert
Tel: 06 84 48 92 36

Conflict Waiver Agreement

Throughout client representation is a key to assessing the lawyer`s conduct, if counsel reasonably believed that they could represent the client appropriately. While counsel is not required to know facts they could not have known, in legal cases an expert appointed by the applicant will assess the lawyer`s conduct. An expert may question whether counsel should have realized that counsel was not able to adequately represent the client because of the conflict situation, or whether he should have realized the need for further investigation. The expert can give his opinion after the fact. A secular court, which probably does not include lawyers, can then assess the lawyer`s appeal on the basis of expert statements. The term « renouncement of conflict » appears very early in the vocabulary of many jurists. There is often a form for such waivers, developed by other lawyers at the firm or from CLE submissions or form books. Unfortunately, non-conflict declarations are made by a large part of the profession. Neither disciplinary rules nor the Restatement of Laverning Lawyers ever use the term « non-conflict. » This article discusses both the theory and impact of conflict literature and suggests the best strategies for developing such documentation.

Since disclosure and consent are an ethical requirement, a waiver of conflict is quite opposed to other exceptions encountered by counsel. A waiver of a conflict does not protect the lawyer from fault or violation of trust rights, since the waiver of such claims is generally prohibited. Restatement Section 54 (2), Texas Rule 1.08 (g). Conflict waiver does not provide protection if risk disclosure or consent is incomplete. The abandonment of conflicts does not mean that the lawyer can forget all the new facts that are revealed or the changes in circumstances during the performance that affect the risks of continuous representation. From an ethical point of view, and therefore for reasons of liability, it is important to know whether the disclosure of counsel was appropriate and whether the lawyer was able to effectively represent the client despite the conflict issues. You could say that there is no law on non-conflict fraud. The presentation of the facts and the disclosure of the risks in the signature are not binding on the client. If the lawyer has omitted essential facts or risks, the waiver is not binding. Oral explanations of the waiver and its effects can be used to disprove the client`s informed consent. It is not uncommon for lawyers to enlighten dispute resolution or provide inappropriate security to a client when asked about the consequences of a waiver of conflict.

The abandonment of prior conflicts for future conflicts is an exception to the analysis proposed in the previous section of this article. To the extent that disciplinary provisions allow such exceptions, they are only effective if the client is sophisticated.


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