If you ask a large law firm that hasn’t worked with your department before to handle a small, one-off matter, the firm may ask you to waive in advance your rights to conflict that firm out of other matters. The firm does not want to have the itsy-bitsy matter block it later on from a large piece of work for a competitor or adversary. As firms swell in size, they more insistently seek prospective waivers (See my posts of March 24, 2007 about DuPont’s struggle with waivers; and Dec. 18, 2006 on law firm engagement letters and assumptions of prospective waivers.).
Firms and departments have negotiated all kinds of language to address the scope of pre-waivers. Still, the issue makes it more complex and time-consuming even when you need to quickly retain specialized counsel.