Waiver of Future Conflicts of Interest for Non-Panel or Independent Counsel Can Create Future Problems

Good Litigation Management Practice Means Never Signing a Legal Fee Agreement with a Waiver of Future “Conflict of Interests” Clause.

It seems that it is becoming de rigueur for attorney engagement agreements to contain a paragraph in which the client is required to consent to (or waive) future conflicts of interest (COI) as a condition precedent to the attorney taking on the representation.

There is no question in my mind that individuals and small businesses who are not “experienced users of legal services” are being victimized by attorneys who often use this sharp business practice in a deceptive and often unethical manner. However, even experienced users of legal services such as insurers also need to be on guard against falling victim to this practice. This is because there is no upside and only downsides to gratuitously agreeing to waive future (and unknown) COI for non-panel or independent counsel. Continue reading

The Lowdown on Why Independent Counsel Perform So Much Unnecessary Research

In a prior blog piece on “unnecessary research,” I noted that it is one of the more common issues I come across when reviewing legal bills from “independent counsel.”  I had several people contact me off-line to discuss this issue.  In particular, they were interested in knowing more about why this is a particular issue with independent counsel bills and not panel counsel bills.

I noted that one reason for the unnecessary research observed so much in independent counsel bills is that many independent counsel are from BIG law firms.  As has been my experience and observation over the years, all BIG law firms tend to have the same M.O. when handling any type of legal matter.  That is, among other things, they always assign young, less experienced lawyers to research whatever the issues are – even spending inordinate amounts of time researching the very issues the handling partner may claim to be an expert in.  Thus the research is not to educate the partner on the law, but to educate his helpers. Continue reading