Conflict Waiver Saves Day Pitney From Ouster in Later Dispute

By Joan C. Rogers

March 11 — A conflict waiver bars a plaintiff from claiming that defense counsel must be disqualified due to its previous concurrent representation of the plaintiff and the defendants, a federal magistrate judge decided March 2 (Radici v. ICF Mercantile, LLC, D.N.J., Civ. No. 2:14-cv-07133 (SRC) (CLW), 3/2/16).

The decision supports the enforceability of advance waivers in which a new client gives up the right to seek a firm's disqualification in subsequent disputes with another specified client of the firm.

Firms increasingly are asking prospective clients to agree to such waivers to protect their attorney-client relationship with an important longtime client when they're approached by a new one-time client who might develop clashing interests with the existing client down the line.

Magistrate Judge Cathy L. Waldo of the U.S. District Court for the District of New Jersey enforced the conflict waiver the plaintiff signed when he retained the Day Pitney LLP law firm. Waldo rejected his argument that he didn't know enough to give informed consent.

Day Pitney relied on the waiver in agreeing to represent the plaintiff in a visa matter while it was concurrently advising the defendants in business negotiations with him, Waldo said.

Concurrent Representation

Several years ago Day Pitney represented Luciano Radici when he was trying to get an investor visa to the U.S. At the same time the firm was representing ICF Mercantile LLC and its owner, David Ronner, concerning a potential partnership with Radici.

Radici is now suing ICF and Ronner over the failed business relationship. Day Pitney is representing the company and its owner against Radici.

Waldo held that Radici waived his right to seek Day Pitney's disqualification premised on that concurrent representation. Waldo cited a waiver letter that both Radici and Ronner signed when Radici engaged the law firm to help with the investor visa application.

The waiver letter stated that the firm would concurrently represent Radici in the visa application process while also advising Ronner in his negotiations with Radici relating to ICF.

It also said that in the event of a dispute among them, Day Pitney would stop representing Radici and would represent ICF and Ronner in the dispute.

The magistrate judge singled out this language in the waiver letter as important:

"[Radici] will not use [Day Pitney’s] representation of him in the Visa Application Matter nor this consent and waiver as a basis on which to disqualify [Day Pitney] from representing ICF or Mr. Ronner on the Member matters, including any litigation that may arise between ICF and/or Mr. Ronner, on one hand, and Mr. Radici on the other."

‘Self-Serving Assertions.'

Radici argued that his consent to the waiver was not informed because he had no experience engaging a U.S. law firm, did not have independent counsel and knew nothing about professional conduct rules or attorney-client privilege.

Waldo saw no merit to that. Aside from “bare bones, self-serving assertions,” Radici didn't provide any basis for the court to find that the waiver was unknowing or involuntary, she said.

The court also observed that if Radici had refused to sign the waiver letter, Day Pitney would have had the opportunity to refuse Radici's matter so as to protect its representation of ICF and Ronner.

“To allow Radici to now claim, years later, that he did not know the effect of the document he signed, is more prejudicial to Defendants,” Waldo wrote.

Radici also contended that Day Pitney should be disqualified because it previously represented him in an earlier visa application and now was allegedly attempting to use information the firm garnered in both visa matters against him. The magistrate rejected that assertion as well.

White & Williams LLP represented Radici. Day Pitney LLP represented ICF Mercantile LLC, ICF Concrete Additives LLC and David Ronner.

To contact the reporter on this story: Joan C. Rogers in Washington at

To contact the editor responsible for this story: Kirk Swanson at

For More Information

Full text at

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

 Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.