The comment to Model Rule 1.10 should state that lawyers and clients can agree ex-ante on what the appropriate screening procedures will be. The proposed amendments are set forth herein as revisions to the text of the Model Rules. Because none of these amendments conflicts with the current text of the Model Rules, each amendment could instead be made to the comments to the Rules. Most conflict waivers are instead obtained when the second client seeks representation.
Many courts are skeptical of advance conflict waivers.
Some recent cases, however, endorse a more flexible approach. Some of these decisions, however, are not based on straightforward endorsement of advance consent, but instead on the murkier principle of estoppel, or a finding that confidential information was not conveyed to the lawyer by the client which consented to the conflict. The Opinion, however, makes no promises as to their enforceability. Indeed, many of the criteria that the Opinion suggests be used to determine whether an advance consent is valid are the same criteria used to evaluate whether there is a conflict in the first place, an approach that deprives the advance consent of actual significance. Under this approach, lawyers and clients gain relatively little from including advance consent terms in their retainer agreements.