McGowan on Big Firm-Big Client Engagement Letter Terms

Posted by Jeff Lipshaw

Whenever David McGowan puts up a long post over at Legal Ethics Forum, I scoot right over, hoping it is some delightfully Humean vent against starry-eyed idealism, and hence a little grist for my argumentative mill.

Ah, to be disappointed.  This time we agree completely, in a free market way, there’s no reason why the professional responsibility rules need to step in and protect big firms from their own “folly” if clients want a term of the representation to be that the firm will not be adverse to any of the client’s subsidiaries.   But David is far more articulate about it than I, and I recommend the read!

Having said that, I should note that my own policy when I was a general counsel was that I regularly waived conflicts where our law firms were technically “adverse” in transactions or in huge environmental cases where everybody was essentially a nominal defendant, but that I never wanted to see one of our firms actually actively litigating against us (or our subsidiaries).  That tended to wreck my whole day.