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Clients Are Understanding About Conflicts Now, but Will They Remain That Way?

With so many banks involved in various transactions, deals and rescues arising out of the Wall Street meltdown, you'd think that many firms would find themselves conflicted out of representation.  But if that were true, you wouldn't see the same handful of law firms, and go-to lawyers involved in the majority of the recent high profile deals, as shown by the pictorial graph in Bruce MacEwen's post on this topic at Adam Smith, Esq.  (As a brief aside, even if you're not interested in the substantive topic, the pictorial is worth a look since it highlights the value of what I discussed today at MyShingle about the "Art of the Chart".)

MacEwen is clear that the purpose of his post isn't to focus on lawyer-celebrities cutting the deals, but rather on the issue of conflicts.  Here, MacEwen observes that when clients want a particular lawyer, they're willing to be flexible when it comes to potential conflicts.  Explains H. Rodgin Cohen, one of the superlawyers generating plenty of deal business these days, while, "Sometimes you just have to pass" on assignments, most clients have "extraordinary understanding of the circumstances." 

While it's true that clients are understanding now, what happens if a deal goes south, even if for a reason completely unrelated to a potential conflict by a lawyer?  How understanding will a client be at that point?  Perhaps, as MacEwen suggests, conventional rules of ethics and conflict of interest should be modified where the purchasers of legal services are sophisticated business people.  But until that happens, and so long as courts are willing to find that some conflicts are so significant that they aren't waivable, it seems to me that today's go-to deal lawyers may be looking for go-to legal malpractice insurance lawyers down the road.

Posted by Carolyn Elefant on October 13, 2008 at 02:32 PM | Permalink | Comments (0)

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