Conflicts of interest for lawyers are a significant concern. This is emphasised during our legal education\u2014the ethics courses and professional conduct exams thoroughly cover the topic. Additionally, we must attend Continuing Professional Development (CPD) sessions on it regularly. Therefore, it\u2019s crucial to have a robust conflict check process in place at your law firm.<\/p>\n
Basically, conflict of interest rules state that you can\u2019t represent a client whose interests are adverse to your own or to a former client. There are several provisions<\/a> in the\u00a0Legal Profession Uniform Law Australian Solicitors\u2019 Conduct Rules 2015<\/em>\u00a0(\u2018Conduct Rules<\/strong><\/em>\u2019) that impose duties on you to avoid conflicts of interest.<\/p>\n Some lawyers say that the worst thing to happen if you botch a conflict check is that you find out too late. At that point, either someone else takes over the case, or you convince the affected clients to sign waivers. That\u2019s probably true in most cases. In others, the delay in swapping out counsel or chasing conflict waivers can harm your client (consider a client waiting on a payoff in an injury case or with an upcoming statute of limitations deadline).<\/p>\n Besides, there\u2019s the appearance of impropriety. These days, that\u2019s enough to get your name plastered all over the internet by an angry former client bitter about you representing his ex-spouse in a new matter. You don\u2019t want to deal with that. An attorney conflict check software will help you spot the issue and prepare before you\u2019re surprised with bar complaints and internet reviews.<\/p>\n You have a conflict of interest when you are serving or attempting to serve two or more interests which aren\u2019t compatible. It may be described in the following way<\/a>. The NSW Law Society discusses in this document<\/a> that a conflict of interest can arise broadly where:<\/p>\n The most common mistake with a law firm conflict check is simply not doing it. A lot of attorneys rely on memory. This is obviously a bad idea. Names change, memories fade, and if you do any volume work at all, you\u2019ll lose track of the people you talked to last week, let alone from years\u2019 prior.<\/p>\n Another common misstep is to maintain inadequate records. Many attorneys maintain a simple list of their own former clients. However, usually not of associated parties, opposing parties, or the contacts of fellow attorneys in their current and former places of employment.<\/p>\n (A great way to avoid mistakes with conflict of interest checks is to use a practice management system like Clio to keep track of all relevant matters and client information for you to support robust conflict checks. Try Clio for free today.<\/a>)<\/p>\n The starting point for a law firm conflict check is to maintain a database of all relevant contacts. This means former clients, opposing parties, etc. Here\u2019s a list of things you should track for accurate conflict checking:<\/p>\n For businesses, you\u2019ll want to include:<\/p>\n Not all of this information will change over time. If you come across a close match, at least you can cross-reference birth dates, maiden names, etc. that require further investigation.<\/p>\n A conflict of interest check should be done before a consult is scheduled. If you do a lot of phone consults, whomever at your law firm first answers the phone should run the above information through your database. You\u2019ll want to check the potential client and opposing party for close matches, misspellings (John, Jon, Johnathan, Jonathan), and former names. Once the check is complete, record the results of the check, including the date and time the check was done.<\/p>\n If a conflict is flagged, or even suspected, the person answering the phone can schedule a follow-up call with the attorney to discuss the matter. Indicate that the firm has time to investigate (and to evaluate whether the case is worth dealing with conflict waivers).<\/p>\n The time it takes to properly conduct a thorough conflict check varies depending on a number of factors such as the complexity and comprehensiveness of your law firm\u2019s database and the specific conflict-checking system you use. Using a manual process, a conflict check could take hours.<\/p>\n n the old days, folks would tell young lawyers to\u00a0break out three binders, or three stacks of notecards, and track clients, opposing parties, and associated contacts in the three respective places. That sounds a bit like sending a telegraph, or tapping out a 30-page memo on a typewriter.<\/p>\n These days, you will probably use technology to help maintain a database of contacts and conduct an attorney conflict check. Here are a few tools that can help with the conflict checking process.<\/p>\n The most common method, I\u2019d suspect, and the one a few firms I\u2019ve worked with use, is an Excel spreadsheet filled with contacts. Things such as name, address, phone, date of birth, relationship to the firm, former names, etc. are recorded. Do a simple \u201cCTRL+F\u201d or \u201cCMD+F\u201d and start typing in variants of names, nicknames, etc. Make a note in the file or intake notes that a conflict check was run, who ran it, and what date and time it was completed.<\/p>\n The biggest downside of this is that Excel can bog down hard when you have a few attorneys with hundreds of former clients, and there\u2019s tons of room for human error. Personally, we\u2019d routinely freeze our PCs doing a simple search.<\/p>\n For\u00a0Clio Manage<\/a>\u00a0customers, there is a built-in search function at the top of the practice management suite. So long as you have entered the relevant information into the client and matter fields, and\u00a0created related contacts\u00a0for opposing and other parties, searches of just a few characters should pull up relevant results.<\/p>\nWhat counts as a law firm conflict of interest?<\/b><\/h2>\n\n\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\t\n\t\n\t\t\t\n\t\n\t\t\t\t\n\t\t\t\n\t\n\t\t\t\t\n\t\t\t\t\n\t\t\n\t\t\t\n\n
\nA practitioner (which includes a law practice) has a conflict of interest when the practitioner serves or attempts to serve two or more interests which are not able to be served consistently or honours or attempts to honour two or more duties which cannot be honoured compatibly and thereby fails to observe the fiduciary duty owed to clients and to former clients.<\/em><\/p>\n\n
Common mistakes with law firm conflict checks<\/b><\/h2>\n\n\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\t\n\t\n\t\t\t\n\t\n\t\t\t\t\n\t\t\t\n\t\n\t\t\t\t\n\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\n\t\t\t\n\n
Creating a conflict check process at your law firm<\/b><\/h2>\n
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How long does a conflict check take?<\/b><\/h2>\n
Using technology to help with law firm conflict checks<\/b><\/h2>\n\n\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\t\n\t\n\t\t\t\n\t\n\t\t\t\t\n\t\t\t\n\t\n\t\t\t\t\n\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\n\t\t\t\n\n
Spreadsheets<\/b><\/h3>\n
Practice management solutions<\/b><\/h3>\n