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Waiving the Unwaivable: Non-Waivable Conflicts and Statutes of Repose Can’t Be Waived, Right? – Commercial Litigation Blog Post by Mark Rogers

October 23, 2017

Commercial Litigation Blog Post by Mark Rogers.

October 2017 has been an interesting month for cases involving waiver in the courts of Georgia. These cases are important reminders that legal rights may matter, but a party’s conduct matters more. They underscore the fact that almost anything is waivable in the right circumstance. Waiver is a fancy word for giving parties what they said (or acted like) they wanted or at least accepted, despite changing their minds at some later point.

In Department of Labor v. Preston, No. 17–10833 (11th Cir. Oct. 12, 2017), new Circuit Judge Kevin Newsom writes an interesting opinion on ERISA’s statute of repose (That’s not a thought you would expect to have about an ERISA case, but Judge Newsom is already making a name for himself rendering interesting usually mundane statutory issues.) In concluding that ERISA’s statute of repose is subject to waiver, the Court collected a list of many waivable “rights,” including the Fourth Amendment right to be free from unreasonable searches, the Fifth Amendment right against self-incrimination, and the Sixth Amendment right to assistance of counsel. The opinion concludes: “It would be passing strange—bizarre, in fact—to conclude that while a litigant can renounce his most basic freedoms under the United States Constitution, he is powerless to waive the protection of . . . ERISA’s statute of repose. No way.” No way, indeed.

This Eleventh Circuit case pairs well with an opinion out of the Georgia Court of Appeals to underscore the concept of waiver, even of the unwaivable. In Zelda Enters., LLLP v. Guarino, 2017 Ga. App. LEXIS 447 (Oct. 4, 2017), the Georgia Court of Appeals reminded us that even non-waivable conflicts of interest are waivable in the course of litigation. The Court noted that the Rules of Professional Conduct—which prohibit waiver of certain conflicts of interest among lawyers and their clients—does not control the decision of whether a client subsequently waives the ability to have a lawyer disqualified in a legal proceeding by delaying in seeking disqualification. In sum, the Court seems to have caught on to the fact that litigants are trying to use tenuous connections with counsel to achieve litigation advantage by seeking disqualification of a party’s lawyer of choice, often after months or years of litigating without raising the issue.

To conclude, legal rights are great. But almost all of them can be waived either expressly in writing or by virtue of a party’s conduct in litigation, and courts are increasingly attuned to hyper-technical lawyering seeking to avoid the consequences of a party’s earlier actions. For the moment, substance prevails over form.

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