Conflicts of interest are a really big deal. We know this because we learn as much in law school—the ethics courses and Multistate Professional Responsibility Exam (MPRE) beat the concept to death. Now, we have to sit through CLEs on it every few years.
Basically, conflict of interest rules state that you can’t represent a client whose interests are adverse to your own or to a former client. It doesn’t sound particularly complicated, but there are multiple Model Rules dedicated to the concept, including a list of prohibitions that might as well be titled, “Don’t be like these lawyers!”
Some lawyers will say that the worst thing that can happen if you botch a conflict check is that you find out about the conflict late, and either someone else takes over the case or you convince the affected clients to sign waivers. That’s 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).
Besides, there’s the appearance of impropriety. These days, that’s 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’t want to deal with that. A conflict check will help you spot the issue and prepare before you get surprised with bar complaints and internet reviews.
What counts as a conflict of interest?
There are many types of lawyer misconduct that have occurred frequently enough that formal rules have been made to prevent them. Here’s a list of things that could result in a conflict of interest:
- Represent two clients whose interests oppose each other (co-defendants in a criminal case who might want to snitch on each other, for example).
- Represent a client where your abilities to lawyer are limited due to responsibilities to a current, former, or third person (personal interest of the lawyer).
- Represent the opposing party in the same matter after dropping a client;
- Represent a party when your former firm represented the other side and you were exposed to information about the case;
- Enter into a business transaction with a client or ownership/pecuniary position opposite to the interests of your client.
- Use information gained when representing a client to harm that client.
- Solicit a gift—including a testamentary gift—from a client unless the lawyer is closely related to the client.
- Secure the movie or literary rights to the client’s story, at least until the case is done.
- Provide financial assistance to a client in connection with the pending litigation, with limited exceptions for advancing costs (repayment contingent on case outcome) or covering costs for indigent clients.
- Let a third-party pay the bill, unless the client gives consent, the lawyer’s judgment isn’t swayed, and client privacy is maintained.
- Negotiate aggregated civil settlements or criminal pleas for multiple clients.
- Make an agreement prospectively limiting malpractice liability.
- Settle a malpractice claim with an unrepresented party unless that person is given the opportunity and written advice to seek counsel.
- All of the above applies to fellow attorneys in your firm.
That’s a lot, right? And I simplified the rules a bit—there’s a lot more, plus notes—in ABA Model Rules 1.7, 1.8 and 1.9.
There are many ways to run into conflict with your client, and as you’ll note from the above list, many can be spotted at the outset of a case. That is the point of a conflict check: To spot and deal with these issues before signing a client and potentially running into trouble.
What’s the remedy to these conflicts? For nearly all of them, informed consent suffices. The best practice, if you must take the case, is to give them the opportunity, in writing, to retain counsel regarding the potential conflict. Both the former client and current client must consent.
A better remedy, assuming the client has other options for counsel, is to not take the case on at all. Write a non-engagement letter clearly explaining that you are not taking on the case and that the potential client needs to look elsewhere. If you know about a statute of limitations or other pressing issue, including a warning to that effect is a good practice as well.
Common mistakes with conflict checks
The most common mistake with conflict checking is to simply not do 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’ll lose track of the people you talked to last week, let alone from years’ prior.
Another common misstep is to maintain inadequate records. Many attorneys maintain a simple list of their own former clients, but not associated parties, opposing parties, or the contacts of fellow attorneys in their current and former places of employment. That last one is big—if your colleague in your firm represented someone whose interests are adverse to your current client, the confidential knowledge and conflict is imputed to you. And, as the ABA Journal notes, these days, attorneys hop firms far more frequently, which means more conflicts and more data to integrate into your database.
Creating a conflict checking process at your law firm
The starting point for conflict checking is to maintain a database of all relevant contacts. This means former clients, opposing parties, etc.. Here’s a list of things you should track for accurate conflict checking:
- Full legal name;
- Maiden and married names;
- Date of birth;
For businesses, you’ll want to include:
- Business name;
- Officers and directors;
- Trade names;
- Place of incorporation
Not all of this information will change over time, but if you come across a close match, at least you can cross-reference birthdates, maiden names, and the other details to investigate further.
Conflict checks should be done before a consult is scheduled. If, like me, you do a lot of phone consults, whomever first answers the phone should run the above information through your database, checking 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.
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 after the firm has time to investigate (and to evaluate whether the case is worth dealing with conflict waivers).
Using technology to help with conflict checks
In the old days, folks would tell young lawyers to break 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.
These days, you will probably use technology to help maintain a database of contacts and conduct conflict checks. Here are a few tools that can help with the conflict checking process.
The most common method, I’d suspect, and one a few firms I’ve worked with use, is an Excel spreadsheet filled with contacts: name, address, phone, date of birth, relationship to firm, former names, etc. Do a simple “CTRL+F” or “CMD+F” 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. The biggest downside of this is that Excel can bog down hard when you have a few attorneys with hundreds of former clients—we’d routinely freeze our PCs doing a simple search.
Practice management solutions
For Clio Manage customers, 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 created related contacts for opposing and other parties, searches of just a few characters should pull up relevant results.
Also, if you’re on Clio’s Elite plan, you’ll be able to search for text within documents and their meta descriptions, adding extra peace of mind.
Conflict checking software
A third suggestion is Faster Suite, a Clio Manage integration that is extremely popular in the Clio Co-Counsel Facebook group. It has a feature that, with the click of a button and a few search terms, will run a conflict check (searching contacts, matters, matter notes, billing records, and anything else you specify) and generate a report. This is my personal favorite, as it turns a conflict check into a thirty-second process, creates the notes for me, and it is so simple that pretty much anyone can do it.
There is also a dedicated list of conflict checking software at US Legal.
Pick a system and actually use it
It isn’t news to any lawyer that they need to have a conflict check system. We all heard it in law school, during bar prep, and at countless CLEs. But with more lawyers switching firms more often throughout their careers, keeping a meticulous record of who you’ve represented and any other relevant contacts is more critical than ever.
At the heart of it, conflict checking is about consistency. Whether you use a dedicated tool, a spreadsheet, or even a binder, make sure to update your database regularly, be thorough with your searches, and keep a record of any conflict checking you do for each case. Your practice—and your clients—will thank you.
Note: The information in this article applies only to US practices. This post is provided for informational purposes only. It does not constitute legal, business, or accounting advice.
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