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Our rules of professional conduct dictate that we comprise certain information in confidence. We hold that confidence to the exclusion of all others, and can even fight a subpoena to protect our patrons’ secrets. Similarly, we take an oath to zealously advocate for our clients. In a perfect world, these two responsibilities would never run afoul of each other.
But they do. And when they do, lawyers risk losing patrons, fund, their undertaking, or even their license.
To prevent these problems all solicitors know they are supposed to do a” conflicts check” as part of their client intake. But that’s all they teach you in constitution academy: you have to check for conflicts. Eric Cooperstein, a Lawyerist contributor and ethics-defense attorney, clarifies the purpose of a conflicts check 😛 TAGEND
Um . . . to make sure there’s not existing conflicts? Even in very small or solo firms, lawyers should not rely on their recollections to determine whether they have a conflict. Detecting a conflict after the representation has started may harm the client and the lawyer.
Minnesota Lawyers Mutual’s vice president of risk management, Todd Scott, writing in the ABA GP Solo’s Law Trends& News newsletter, puts it a different way: The purpose of a conflicts check is to ensure that your commitment to your client’s matter will not be distracted by your commitment to any other person.
The Importance of a Conflicts Check
In the Lawyerist Lab, Sam says the only perils of missing a conflict are a potential withdrawal and some returned costs:” no big deal .” But Michelle Turbanic, a conflicts attorney with an international law firm, disagrees 😛 TAGEND
There is a reason conflicts checks are so often the topic of discussion at CLEs, especially those programs designed for new attorneys. Miscarrying to perform a conflict check can result in having to fend off a disqualification motion, or worse, having disciplinary proceedings filed against you. In many larger firms, conflicts departments are considered a division of risk management. And I think that is exactly how you need to view a conflict check, as very necessary risk management procedures that ultimately protect you, your practice, and your firm.
The Right Information
The first step to conducting a conflicts check is having a system in place. But before you can structure the system, you need the information that your structure will rely on. I asked Turbanic about what information needs to go into the system.” A listing of epithets is actually merely a decent start to what a conflicts system should contain ,” she said. She explained that the database should have as much information as possible because you may need more information once you uncover a potential conflict. Each contact should be linked to a file or such matters. Ideally, at a glance, you will also know if that matter is open or closed. The relation the firm had with the contact is also important. Turbanic explains that it is” most helpful to know if each call in your database had a client, adversary, or third-party relationship with you or your firm .”
Even for those contacts, the system will be useless without further information. For example, is recognized that you represented Sue Smith in a divorce is comically useless unless you have an impeccable remembrance. The database should also include what Cooperstein refers to as related identifies: spouses, infants, boss, etc. As you input information, think about potential patrons down the road. Cooperstein imparts the instance of an property. If you represent the executor, make sure to include in your conflicts check system final beneficiaries’ names. He likewise observes that it” may be useful to[ include] the names of expert evidences or key fact eyewitness in your database .”
Finally, the conflicts check database likewise needs to include information about any lawyers at your firm, including about their past clients. Include who they represented, what the issue was, and the other parties involved are all necessary information in your database. Turbanic reminds us that” it is extremely important to remember you have obligations to former clients , not only current ones .”
Maintaining the Database
Modern practice management software allows firms to input this potentially voluminous data with relative affluence. As opposed to binders or notecards, digital alternatives is also available scoured almost instantaneously. And practice administration suites like Clio, Rocket Matter, and MyCase all offer remote access to the information. Unfortunately, these systems are little more than Rolodexes in this sense. None of the three systems allow you to link contacts to one another. Which means that if a epithet you’re searching for poppings up in your system, you have some delving to do. You cannot readily interpret all of the contacts that person is associated with, such as their lawyer, their daughter, etc.
Of course, there is still the opportunity for human error. Beyond making sure that spelling is correct, it’s important that everyone in the firm is using consistent punctuation and abbreviations. That will allow the system to operate efficiently. It seems obvious, but it’s easy for one person to abbreviate a company utilizing its common acronym, while someone else normally spells things out. Soon the database could have S.H.I.E.L.D. as a patron and the Strategic Homeland Intervention, Enforcement and Logistics Division as an opponent in another case, all because of a dislocation in abbreviation consistency.
Putting information into your database when a new example is opened or a brand-new client comes in is easy. Ideally, you’ll collect all the information about opposing parties and third parties up front. But that isn’t always what happens. Lawsuits evolve and parties are joined or rejected. Expert eyewitness are hired, and principals leave corporations. Michelle Turbanic indicates only that unless the system is up-to-date, you won’t be able to do a proper check. That’s why you should update the information once a instance is closed, if there is a new content for an old-fashioned client, or if you lose a client.
The Conflict Check System
Now that you have your data, you can start to sort out your system. Methods for conducting conflict checks are as varied as law firm billing structures. In the Lab, several members described their conflict-checking systems. Some rely exclusively on advocates’ memories, while others require a more thorough records check. In his article, Scott lays out several different methods. The first is a three-binder system. Scott clarifies 😛 TAGEND
The best way for the law firm to establish and maintain these lists[ of clients and associated contacts] is to keep them in three separate ring-binders. The client list in the first binder is updated every time a brand-new patron retains the firm to handle a legal thing. A Client Data Sheet containing basic information about that client is added to the binder in alphabetical ordering, and is permanently stored in the binder.
The second and third ring-binders containing indices of other parties and solicitors are always being updated as a client’s matter is ongoing. As you was informed of new parties and individuals, as well as lawyers that was involved in your client’s matter, you fill out a short Conflicts File Memorandum form indicating the name of the person and their relationship to the legal problem involving one of your clients.
Scott’s article was written in 2006, and surely some firms still use this binder structure, or its cousin, the notecard structure. Presumably, most firms have evolved to some kind of digital system for ease-of-use and security purposes.
You can have the most robust, easiest to use, and least expensive conflict check system in the world. And if no one in your firm uses it, it is completely pointless. Thus the best system is one that everyone in the firm signs onto. From the partners to the paralegals, everyone must ensure that data is input correctly and the checks are actually conducted.
Binders or Bytes?
The biggest and easiest decision to attain is whether to maintain a newspaper system or a digital system. The digital system should be the obvious alternative. It allows quicker searches, the ability to store more data, and it can be backed up. Paper structures are localise, prone to easy extermination, and is but scoured manually.
One terrific advantage of a digital approach is automatic fill fields. Even with Microsoft Excel or Google Drive, the system can start to autocomplete a identify as you type it. If something unexpected comes up, it can prompt you to dig deeper in your conflicts check. But more importantly, it can help avoid human error. If you start typing in a epithet and the field inspires you to auto-fill with a similarly spelled call, you will be able to see if someone else had the same name in there spelled differently.
Digital systems likewise allow access when you are away from the role, and the check should be done as early as possible. A system that you can access remotely will allow you to do a conflict check when someone comes up to you in the courthouse looking for help.
Conducting the Conflicts Check
Eric Cooperstein points out that the conflicts check should be performed immediately, before you receive any confidential information from a prospective client. He notes that” detecting a conflict after the representation has started may harm the client and the lawyer .” Therefore the check should form part of your intake process, even before a file is formally opened.
There is some mystery around doing a conflicts check. In law school we learn that we have to do them, but not how to do them or what they entail. In fact, the first step is incredibly easy. Run the name of the brand-new patron( s ), any adversaries, companies, etc. through your structure. If the identify doesn’t come up, you’re likely in the clear.
If a epithet or organisation is already in your structure, it’s time to dig. Is this a current client? A former client? What is the previous matter they were involved with? How were they involved?
With all your datum in hand, it’s time to turn to your jurisdiction’s ethics rules. Under the Model Rules of Professional Conduct, Rules 1.6 through 1.13 are all helpful depending on the relationships. You need to determine if you can represent this new client in this specific matter. And, if you can, whether it requires any formal waivers from any other people or entities. As Cooperstein tones: Some solicitors assure conflicts everywhere; others can’t see a conflict sitting right in front of them. It’s a good idea to seek input from an unbiased solicitor when you think you may have a conflict or when someone accuses you of one.
Keep in head conflicts can extend beyond your ethical requirements. There may be business conflicts or conflicts of interest looming around a corner. Consider your firm’s interest and image, and who the firm does business with regularly. These things can play a role in a decision to take on a brand-new matter.
Originally published 2017 -0 5-08. Republished 2019 -1 0-14.
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