Sunday, September 16, 2012
Kevin Michels, "What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent"
Legal Ethics Forum: Kevin Michels, "What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent":
This article by NJ Ethics treatise author Kevin Michels looks promising. How do you tell if a conflict is "consentable", i.e. permissible despite the conflict of interest? I have been groping toward an answer to this problem with what I cal "the distraction test". If something is distracting you from undivided loyalty to your client you must ask if there is a conflict requiring consent. But how must distraction is too much? Michels proposes: "An informed conflict waiver must be rejected as incompetent if limitations on the means or procedures by which the attorney pursues the matter caused by the conflict of interest are likely to defeat the client’s objectives for the representation. " - GWC
h/t John Steele at Legal Ethics Forum
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