I've been reviewing the new Illinois rules of professional conduct, and I noticed that they do not require a client's consent to a conflict to be in writing. See, e.g., Rule 1.7(b)(4). (The previous version of Illinois Rule 1.7 also did not explicitly require written consent.)
The absence of a writing requirement struck me as odd. Can anyone offer a good explanation for why non-written consents should be permissible?
The Joint Committee that drafted the new Illinois rules stated its position in its final report this way:
"The model rule requires waivers of conflicts (i.e., client consents) to be in writing. That would be a significant change from the current Illinois rule. Although written conflict waivers are clearly desirable in many situations, requiring written consent in every situation as a
matter of discipline is both unnecessary and inappropriate. Often, the conflict issues are clear, the affected clients understand the issues, and the matter is uncomplicated. The need for consent may arise unexpectedly and without notice in the midst of a transaction or other
matter. In such cases, requiring a writing merely adds unnecessary delay and expense, and elevates technicality over the substantive question whether consent was given. Moreover, subjecting a lawyer to potential discipline, disqualification, and malpractice liability for want of a writing—when it may be entirely clear that the consent was in fact given—is not reasonable. Accordingly, the Committee recommends that the rule and comments be revised to eliminate the requirement that conflict waivers be in writing."
Posted by: Alberto Bernabe | July 06, 2009 at 03:07 PM