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Publication Date

2016

Abstract

As law firms and their corporate clients continue to expand into different legal jurisdictions, and since the conflict of one attorney is imputed to the attorney's firm, the potential for conflicts of interest increases. A law firm retained to advise a corporate subsidiary in a minor matter in one state may be disqualified from another, more significant matter in a different jurisdiction if the potential client is adverse to the parent company in the initial representation. Without a method for prospective waiver of conflicts, a law firm's only recourse is seeking the consent of the currently represented client. To avoid this unfavorable situation,firms have tried to obtain and enforce prospective waivers of conflict from clients at the outset of representation. Many states have adopted Comment 22 to American Bar Association Model Rule 1.7, allowing enforceability of such waivers so long as the client is an experienced user of legal services, the client is independently represented in the giving of consent, and the consent is limited to conflicts unrelated to the subject matter of the representation,inter alia. Georgia has not adopted Comment 22 and Georgia courts have declined to enforce prospective waivers. This Note explains Georgia trial court decisions addressing the issue and advocates for reform, namely the adoption of Comment 22.

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