Conflicts of Interest Disclosures
Writing an effective conflicts of interest disclosure and waiver usually takes time and careful thought. Here are a few basic elements of an effective conflicts disclosure and waiver.
Rule 1.06, Texas Disciplinary Rules of Professional Conduct, is the general conflicts of interest rule. This Rule not only identifies the most common conflicts of interests (for example, see also Rules 1.07, 1.08, 1.09, 1.10, and 3.08), but also explains when and how a lawyer may seek a waiver of a conflict from a client or clients.
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1. Identify the potential or actual conflict of interest
Rule 1.06(a) and (b)—as well as the other rules cited above—are the starting point for conflicts identification. Conflicts are fact specific. Examining the overall factual scenario from more than one angle is important. A conflict that is not apparent from one party’s perspective may become obvious from another party’s point of view. What are the relative interests of the involved parties, including the lawyer’s or law firm’s interests, if any, and are those interests aligned or unaligned? If the interests are aligned now, are there scenarios in the future where continued alignment is unlikely or deserves exploration?