In a recent decision, the First Department refused to disqualify Jones Day from representing Macy's in a lawsuit against J.C. Penney, even though the firm currently represents J.C. Penney on other unrelated matters. The court relied on a broad advance waiver that was sent by a Jones Day lawyer to J.C. Penney in 2008, which states that J.C. Penney waives any conflict of interest arising from "any current or future representation of any client in any matter, including without limitation any representations in negotiations, transactions, counseling or litigation adverse to J.C. Penney, as long as that other matter is not substantially related to any of our engagements on behalf of J.C. Penney." Although J.C. Penney did not sign the waiver, its decision to avail itself of Jones Day's services constituted acceptance of the agreement, according to the court. The court based this conclusion on the following language in the waiver: "Your instructing us or continuing to instruct us on this matter will constitute your full acceptance of the terms set out above and attached."
Interestingly, the court makes no mention of the waivability test in Rule 1.7(b). Is it just taken for granted now that if the two matters are unrelated, the conflict is waivable?
What do you think? Does this waiver qualify as informed consent, confirmed in writing?