Kevin McMunigal was invited by the Utah Law Review to provide a response to my 2012 article, the Sophisticates: Conflicted Representation and the Lehman Bankruptcy. Here is the abstract of his comment:
I like many things about Professor Milan Markovic’s article on which I have been invited to comment. He has chosen an interesting, important, and timely topic and provides a detailed and persuasive critique of the ability of sophisticated clients to understand and protect themselves from the dangers presented by attorney conflicts of interest. I found particularly interesting his examination of the psychological issues that surround a lawyer obtaining a client’s consent to a conflict of interest. I devote this commentary, though, to two aspects of Professor Markovic’s article I find puzzling. The first is the modesty of the remedial measures he proposes. The second is his apparent ambivalence about whether the Sullivan lawyers acted unethically.
There are many interesting issues raised by Prof. McMunigal's comment, but I was especially struck by the apparent disconnect between the legal academy and practicing lawyers on prospective waivers of conflicts of interest. Prof. McMunigal offers some criticisms of such waivers and correctly diagnoses my discomfort with them. Larry Fox has been an outspoken critic of prospective waivers, and even many of their defenders in the academy seem to believe that their use should be highly restricted. General, open-ended prospective waivers are used by the vast majority of large law firms, however, and courts seem to be increasingly inclined to enforce them.