Lawyers often ask their local government clients to waive conflicts of interest. Here are some suggested rules for how a local government should handle conflict waiver requests from its outside lawyers:
Keep in mind that it’s in the outside lawyer’s interest to get you to provide the waiver. Even when the lawyer is following all the rules related to requesting the waiver, you can’t count on the outside lawyer to look out for the local government’s interest – you have to do that yourself.
Also keep in mind that you are never required to grant a waiver. You don’t have to first conclude that the waiver will create a substantive legal disadvantage to your local government. Similarly, you can revoke a waiver at any time, for any reason. Now, we wouldn’t suggest granting a waiver in the first place only because you know it’s revocable – make a careful consideration of both an initial grant and any subsequent revocation.
An attorney for the local government and another senior staff member should review each waiver request. Almost always, there are both legal and policy/political issues to consider before granting a waiver; it makes sense for separate people to review and think about the waiver from these separate perspectives. While a staff member should not approve a waiver without consulting the attorney, the reverse is also true: an attorney should not grant a waiver without approval from another client representative.
We think it’s generally not necessary to bring a waiver request to your governing body for approval, but there certainly could be circumstances in which the reviewing attorney and staff member decide that’s appropriate.
The lawyers’ rules of professional conduct don’t require that a waiver be signed by the client that grants the waiver. We think the better practice, however, is to require that all waivers be signed by a government representative, because that is probably a better prompt for the signing official to carefully review the request (and to remember to apply these rules).
Don’t grant a waiver until you fully understand what’s being requested. Ask questions about the following issues (preferably during a live conversation, not just during an exchange of e-mails) –
- What is the nature of the conflict I’m being asked to waive (the area of representation, and the time duration)?
- What are the advantages and disadvantages of agreeing to the waiver? What are our alternatives if we don’t grant the waiver – for example, if we don’t grant the waiver and the lawyer then drops us as a client, what are the short- and long-term implications?
- What are the chances for the lawyer’s use of confidential information, or the lawyer’s knowledge of our internal policies and business practices, against our interest? Even if the outside lawyer is as ethical as possible, there will inevitably be information the lawyer has that can be used against the government that may not qualify as attorney/client confidential information or that may not be separable from the lawyer’s work for the other client.
If you don’t get the information you want, or you don’t like the answers you get, you don’t need to provide the waiver — and you don’t need to feel bad about it.
Understand when you are a “client” and when you are a “former client.” The waiver rules become much more lenient for the requesting lawyer when it comes to “former clients,” as opposed to “current clients,” but sometimes the transition into “former” status is not clear to clients. Your engagement letters with outside lawyers should describe both the scope of the work being done and what, if anything, you want the outside lawyer to do to signify the end of the representation.
Advance waivers are worth a few more words. Sometimes lawyers will ask a local government to consent now to a conflict that may arise in the future, or to any conflict that may arise in the future. We understand some lawyers even ask for blanket advance waivers as part of the original engagement process. We believe the evaluation of this type of request should go through same analysis we’ve outlined above – ask the same questions, and consider the answers. Some local government attorneys recommend that a client never grant an advance waiver – why agree to waive a conflict before it arises and you can understand the specific circumstances?
Our bottom line recommendation is that before you grant a waiver, (a) you fully understand the scope of what you’re being asked to agree to, (b) you consider the implications carefully from both legal and non-legal viewpoints, and (c) you get a few sets of eyes to help ensure you’re making a balanced judgment in the best interests of the local government. It’s certainly not wrong to ask for or grant a waiver of a lawyer’s conflict of interest, but look out for the government’s interest in considering the request.