Having a system for screening new matters for potential conflicts of interest might not be the most exciting part of practicing law, but it is essential if you want to avoid trouble.
Not only that, it’s ethically required by the Rules of Professional Conduct.
Malpractice claims alleging a conflict of interest are on the rise, especially in real estate, contracts, business law and other practice areas that can involve multiple parties and competing interests. Some of these cases are resulting in big verdicts, which sometimes include punitive damages.
And the larger the firm and the greater the number of clients, the more complicated the job of checking for conflicts becomes.
Practice resources are at your fingertips when you’re a member of Alta Pro Lawyers RPG. You get access to the Pro Practice Playbook, Reminger ProLink, Ask the Risk Pro, free CLE webinars and more. Here’s how to join.
A Good Starting Point: The Pro Practice Playbook
If you’re looking to improve your conflicts checking system, visit the Pro Practice Playbook portion of the Alta Pro website. Section 4.4 is on Avoiding Conflicts of Interest.
Another smart move is to review Rule 1.7 of your state’s Rules of Professional Conduct. Under ABA Model Rule 1.7 (which is mirrored in most states) a conflict exists when (1) the representation of a client is directly adverse to another current client, and (2) when there is a substantial risk that the lawyer’s loyalty will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer’s own personal interests.
Practice Tip #1: At your next staff meeting, discuss Rule 1.7. Review your conflict check system. Is it sufficient to comply with the Rule? Do changes need to be made?
Some Additional Pointers
- The two key elements to a good conflicts system are: (1) a comprehensive database of current and prior clients and adverse parties to check against, (2) getting all attorneys and assistants to buy into taking the time to use the system.
- There is no right or wrong system. Even the best system won’t work if you don’t use it faithfully.
- Screen for conflicts at three key junctures: (1) before the initial interview, (2) before a new file is opened, and (3) when a new party (and sometimes even a new witness or document) enters the case. Conflicts can arise while a matter is ongoing – so stay vigilant!
- Conduct a new check when new attorneys and staff join your firm (check against their past clients).
- Make the system as easy to use as possible.
- Check all relevant names and entities (ex: business name, owner’s name, etc). Watch for spelling variations.
- Develop a conflicts form that can be circulated among all attorneys before a new matter is accepted. Depending on your email platform and network system, you might be able to post the form as a shared document. Everyone can access the document and initial/check off on it if no conflict is found. The prospective client should not be accepted until every attorney has signed off on the form.
- Circulate or post a new client list regularly, so lawyers and staff can conduct ongoing reviews – and to keep conflicts avoidance top of mind.
- Here is a good article from the International Association of Defense Counsel (it’s dated 2009 but the information is good).
- Here is good information from the District of Columbia Practice Management Advisory Service.
- Here is a good article from Law Practice Management Today
- Remember: if there’s one thing every client understands, it’s loyalty. If they feel yours is compromised or conflicted, the relationship is in peril.
Practice Tip #2: If you’re interested in conflicts checking software, Clio offers top-grade practice management systems. Alta Pro Lawyers RPG members are eligible for an exclusive Clio discount.
If you’re an Alta Pro insured and have a question about a conflict with a specific client – or about a potential or actual problem in a case – you can get loss prevention/claim avoidance advice from the Reminger law firm. Reminger Pro Link is another benefit of membership in Alta Pro Lawyers RPG. Here’s how to join.