What is a conflict of interest waiver?

If you work or are studying in the legal world, then you will probably be familiar with the term, conflict of interest. 

“Conflict of interest” in the legal word refers to a situation where an individual is in a position to exploit his professional capacity for his own benefit. As an example, a conflict of interest would arise if one law firm tried to represent both parties in a divorce case.

This problem would usually be found in the medical and political worlds as well as the legal world,

To help explore this concept further, consider the following conflict of interest definition.

Definition of conflict of interest

Noun:

  1. A situation that arises where a professional, whether it is an attorney or a judge, is put in a position where he can leverage his professional capacity to his own benefit.

So what is a conflict of interest waiver?

A conflict of interest waiver is a legal document stating that a conflict of interest might be present in a situation, all parties are aware, and decisions are being made to keep things fair and reasonable. Waivers are required for certain legal situations and strongly advised in others, Clients that are asked to sign a conflict of interest waiver should make sure to review it carefully and to question anything they do not understand.

This document will go on file and become part of the supporting materials for the case.

Example

As an example, two attorneys at law firm X represent opposite sides of a case. This can create a conflict of interest because they both work for the same firm and have the interests of the firm in mind.

The attorneys may decide to draw up a conflict of interest waiver to make sure they do not share unauthorized information, conduct backroom dealing or engage in any other activities that may compromise the case.

Attorneys and other professionals such as judges, doctors and so on who have a conflict of interest may need to recuse themselves in some situations, or request a waiver in others.

The vital aspect of this process is a full disclosure, explaining the nature of the conflict of interest, potential problems that could arise and what people are doing to address the situation.

Clients may also decide to seek different representation after the disclosure, or may agree to continue with the waiver as a binding document to guide everyone’s behaviour. 

Consequences

If there is no conflict of interest waiver, then there is risk of suit and legal liability. If the client is unhappy with the outcome of a case, this may decide it was the result of an unfair situation and could sue for damages and request a new trial to have the matter decided in a neutral setting.

If the case brought forward by the client is successful, people may be in trouble under professional ethics guidelines and could face a suspension or revocation of their licenses to practice.

However this does depend on the standards of the professional organizations that they work with.

Receiving a conflict of interest waiver

Once people receive a conflict of interest waiver for review and signature, they have the right to review the document with care.

They can also consult another attorney for advice and may also ask to see the ethical guidelines for cases in which conflicts arise to see if the waiver covers all possible contingencies.

Additionally, they are able to request to meet with supervisors and other people involved in the situation to learn more about how they plan to deal with the issue.

What should a good conflict of interest waiver contain?

So, you understand what a conflict of interest waiver is. However, what should a good conflict of interest waiver contain?

  1. Identify the conflict of interest:

As an example, if representation of the client might be materially limited by your personal interest in not having your client assert a malpractice claim against you, say so.

  1. Describe the workaround:

Tell the clients why you believe you can provide competent representation notwithstanding the existence of a conflict of interest. 

  1. Describe the downside of the client waiving the conflict of interest

If the conflict happens to be a personal interest conflict, a downside could be that despite your best efforts to prevent it, your personal interest may influence your actions.

  1. Describe the upside of the client waiving the conflict of interest:

Reduced cost may be an upside. For example, not having to call in another lawyer to speed up the case might be a reason for the client to consent.

  1. Get it in writing

The consent of the case needs to be confirmed in writing and it is best to have the client sign the content, if possible. 

  1. Take it home

You may want to take home the written consent of the client and case that you are dealing with through the conflict of interest waiver. 

Final thoughts

Whether you work in the legal industry or are studying to pursue a career within this sector, this article should have helped you understand the definition of a conflict of interest waiver.

As well as a definition, the article should help you to understand what a good conflict of interest waiver should contain in order to feel more comfortable handling these cases.