Cassie Hanson, conflicts and ethics counsel at Fredrikson & Byron, P.A., produced this excellent analysis: “Quandaries & Quagmires: Advance waivers: Lessons from Paul Hastings vs. Coca Cola” —

• “This summer, ethics took center stage in a conflict-of-interest row between Big Law and corporate behemoth Coca-Cola. As ethics counsel, I followed the developments with curiosity as the drama played out in unusually public fashion and was widely covered in legal news. The dispute highlighted the enforceability of advance waivers.”
• “The court held the advance waiver was enforceable and issued a no-nonsense order that is a useful reminder about best practices for law firms utilizing advance waivers.”
• “How does an advance waiver meet the ‘informed consent’ standard? Rule 1.0(e) defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” This means the lawyer must make a full and effective disclosure of all of the relevant facts, including material advantages and disadvantages of the proposed representation, and provide reasonable alternatives, which is usually hiring or consulting with other counsel.”
• “In concluding that Coca-Cola gave informed consent by signing the waiver, the court held that the advance waiver was clearly enforceable; it ticked all of the boxes for informing Coca-Cola about the material risks of signing the waiver and that it should seek advice of independent counsel before agreeing to the waiver. Coca-Cola’s counterargument — that the advance waiver was ‘open-ended boilerplate’ and ‘unenforceable’ — did not move the needle with the court.”
• “What is to be learned from the fallout with Paul Hastings and Coca-Cola? Advance waivers are not a silver bullet, and law firms should not be overconfident in their reliance upon them. Advance waivers are subject to ethical and legal standards that vary by jurisdiction, and their enforceability may depend on a range of factors, including the clarity of the waiver and the specific circumstances of the case. Importantly, there are limits to the enforceability of advance waivers and some jurisdictions have held them to be unenforceable.”
• “Law firms should be more wary of employing advance waivers with individuals or small companies who are not sophisticated actors. Reliance on an advance waiver in direct adversity situations like litigation always brings higher risk.”
• “After understanding the limits and risks involved with advance waivers, there are common sense things a law firm can do to make an advance waiver more likely to stand up to judicial scrutiny:
  • Spend time constructing an advance waiver specific to the client to avoid accusations of using unenforceable, boilerplate terms.
  • Describe any existing or presenting foreseen conflicts that are known at the time of retention and define what will and will not be considered unrelated matters. Make sure that you have other clients’ consent to make such disclosures if it involves identifying the representation of a specific client such as a competitor. A good work-around is to use categories of clients that may be adverse to the specific client.
  • Expressly address potential risks to confidentiality, even if circumstances are such that the material risk of adverse disclosure or use of confidential client information is low.
  • Discuss client specific risks to loyalty such as representation of clients that may have adverse business interests to the client, such as competitors.
  • Do not ask for more than what is required of the client. If you are engaged primarily in transactional matters, including litigation within the scope of the advance waiver makes it more unlikely to be accepted by a client. Some business clients have outside counsel guidelines (“OCGs”) prohibiting acceptance of advance waivers. Including litigation makes it more likely to be rejected by in-house counsel. Interestingly, Coca-Cola had OCGs that prohibited advance waivers and argued its OCGs superseded the advance waiver. The court covered it in a passing footnote and gave it no credence. Despite the court’s lax treatment of this issue, OCGs can present a total bar to a law firm’s use of an advance waiver. Limiting the scope to transactional matters in the future makes it more likely to be signed in these circumstances.
• “Recommend that the client seek the advice of independent counsel and give adequate time for the client’s consideration of the advance waiver prior to signing. “[G]enerally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.” Cmt. 6 to Rule 1.0. Where possible, draft an advance waiver for signature by the client’s in-house counsel as they have an independent obligation to inform the organization of all of the relevant information and risks associated with the waiver.”
• “Elephant in the room? After dissecting all of the media coverage and the court’s order denying disqualification, I am left with a nagging question. Did a premier law firm like Paul Hastings really miss the ball on its lateral screening or did it believe that reliance on its advance waiver would survive a disqualification motion? The latter seems more plausible and presents an off-putting possibility for prospective clients of Paul Hastings. Clients may think twice about hiring a law firm that sets aside its clients with such calculation. The media attention garnered by this spat resulted in unwarranted attention for Paul Hastings and the fallout serves as a due diligence cautionary tale for other law firms to spend adequate time screening for potential conflicts-of-interest, especially active litigation conflicts.”

“Bar associations are stifling innovation and driving up costs, report says” —

• “State courts should strip bar associations of some regulatory functions to spur innovation and lower the cost of legal services, according to a new paper from a Stanford Law center.”
• “State bar associations have a conflict of interest in their oversight of who is allowed to provide legal services, because most of the organizations also represent the professional interests of lawyers, according to the paper, released Monday by Stanford Law’s Deborah L. Rhode Center on the Legal Profession.”
• “Shifting some of their regulatory responsibilities to lawmakers or newly created entities would allow bar associations to focus squarely on the oversight of lawyers and open the door to non-traditional and lower cost legal services providers, according to the paper, authored by Rhode Center Executive Director Lucy Ricca and Thomas Clarke, a former administrator with the National Center for State Courts.”
• “The report offers five different options of how state courts can restructure legal practice regulation to minimize bar associations’ conflicts of interest and bolster innovation.”
• “The least dramatic proposed change involves leaving state bars in charge of regulation but expanding the types of entities allowed to operate to include legal paraprofessionals or legal services entities. A bigger possible change would be to task state lawmakers with the regulation of legal service providers while leaving lawyer regulation to bar associations or creating new entities to oversee any non-lawyer legal services.”
• “‘This is a significant challenge but not an impossible one,’ the paper reads.”

“At Oral Argument, Law Firm Says It Didn’t Violate Client’s Privacy With Press Release Announcing Med Mal Verdict” —

• “At oral arguments Thursday, the Illinois Supreme Court mulled whether a Chicago plaintiffs law firm’s press release announcing a $4.2 million jury award in a medical malpractice suit violated the Mental Health and Developmental Disabilities Confidentiality Act by disclosing the details of its now-former client’s mental health diagnoses.”
• “The Illinois high court is now set to decide whether the appellate court was correct in finding that attorney Elizabeth A. Kaveny and her former firm Burke Wise Morrissey & Kaveny violated the act by redisclosing information pertaining to the plaintiff, identified in the current matter as John Doe, that was protected by Health Insurance Portability and Accountability Act of 1996 (HIPAA).”
• “‘Once plaintiff put his entire mental health history into the record at that medical malpractice trial, it ceased to be confidential information,’ Kimberly A. Jansen, a partner at Hinshaw & Culbertson in Chicago, argued on behalf the law firm Thursday. ‘We all know trials are public. Nothing in that medical malpractice case was sealed.'”
• “But Doe challenged the use of and information of his diagnoses, the suicide attempt, and the effects of his injuries and that the ‘redisclosure of that information to the press’ violated confidentiality. He claims that the defendants went “well beyond simply confirming” the outcome of the medical malpractice litigation, but also included ‘highly personal medical and mental health care information,’ according to the plaintiff’s brief by counsel, Thomas M. Paris, a solo practitioner.”