As attorneys we're charged with representing a client to the best of our abilities. This single-client model makes it easy to determine conflicts of interest. However, in reality, it's impossible to have only one client at a time -- especially if you're trying to earn a living. In fact, sometimes it's necessary to represent multiple parties for the same matter.
Because of this, attorneys must be careful to avoid conflicts of interest that could lead to disqualification from representation or, worse yet, malpractice. How should an attorney guard against potential conflicts of interest? The key to managing conflicts of interest is keeping good records and taking an abundance of caution when deciding to represent a new client.
Understanding Conflicts of Interest
Each jurisdiction has their own set of professional rules and it's important to know the rule that applies to you, but most states base their conflict of interest rules on the Model Rules of Professional Conduct. The client-lawyer relationship is defined in Model Rule 1.7, which provides that a conflict exists when:
- One client's interests are directly adverse to another client; or
- The representation of a client is limited by responsibilities to another client, a former client, a third person, or the personal interests of the attorney.
Further guidance on avoiding conflicts is found in Model Rule 1.8 which prohibits:
- Business transactions with clients without a waiver;
- Soliciting substantial gifts from clients;
- Selling literary or media rights about the client;
- Providing financial assistance to a client except in limited circumstances; or
- Playing one client off of the other in the case of multi-client representation (e.g. having one client plead guilty so the other goes free).
Duties to former clients are described in Model Rule 1.9, which prohibits an attorney from representing someone whose matter is adverse to a former client's interests.
Creating a Conflict Checking System
A conflict checking system is really nothing more than a list of client names. However, to be effective in identifying conflicts, it needs to capture as much information as possible. At a bare minimum, a conflicts database for current and former clients should include the following:
- Client Name
- Matter Number
- Case Name
- Case Number
- Opposing Counsel
You can choose a variety of systems to collect the necessary information. The legal dinosaurs (or non-conformists) are probably still relying solely on a paper system of index cards or alphabetically-filed forms, but a computer solution will definitely make searching for conflicts easier. There are total package case management systems, that may be beyond the financial reach of a solo or small practitioner, but you can do a lot with spreadsheets and, best of all, they come at minimal cost.
Beyond the basic case data for your present and former clients, you'll also want to include client associations and lawyer information for each case.
To be effective in managing conflicts of interest, you need the names of everyone associated with your client and the matter in question. An appropriate intake system will help to capture the names of spouses, children, employers, insurance carriers, and businesses. Basically, any information for the type of practice that you have where you could potentially represent an adverse party. In addition to your client's information, the collected information could include additional associations such as:
- Other co-parties
- Expert witnesses
- Opposing counsel and co-counsel
- Business Interests
It's important to collect this information and do the conflict check before you have any extensive discussions of the case with the potential client. After all, you don't want to be in the position where you may be disqualified from the case altogether because a party revealed case details before you realized you were already representing someone with adverse interests.
Other important inputs for a conflict checking system are the names of the lawyers in the firm. Since there are also possible conflicts which can involve particular lawyers in the firm (for example, with their previous clients); both present and past lawyer's names should be included in your list. (Model Rule 1.10). In addition, you may want the names of the lawyer's spouses and children, but it may be easier to just send a notice to the attorneys in your firm and ask them if they have a conflict.
Conducting Your Conflict Checks
When a potential client approaches you or your firm, the initial information you gather should include your proposed client's name and the names of their personal connections. Those names should then be checked against your list of names and the case information database. Then an alert should be sent to the attorneys in your firm asking about any conflicts that they may know about. After all, they may have business relationships or some personal conflicts. If the potential client's name comes up negative, then you've likely cleared your conflicts hurdle.
What if You Identify a Potential Conflict?
If your conflict check does indicate a possible conflict with a potential client, then you'll have to consult the Rules of Professional Conduct in your jurisdiction to see if it is an actual conflict or a potential conflict. Model Rules 1.6 through 1.13 will also provide guidance as to whether representation must be refused or if a waiver is possible.
Letter Refusing Representation
If an actual or a potential conflict exists and you either cannot obtain a waiver or you feel it's in another client's best interest that you not represent them, then you need to send a non-engagement letter to the potential client declining representation. The letter needs to unequivocally state that you will not be taking the case because of a conflict of interest. Be sure to suggest that they seek other counsel and remind them of any important deadlines.
Use Your System and Double Check Results
The best conflict checking system is one that's used by all members of the firm, both the attorneys and the staff. It should be constantly updated with new information from each case. It should also be integrated with the other office systems such as time recording, billing, and case management.
Remember that conflict checking is not one and done, but an ongoing process. You check at the intake stage, when a new party enters the action, and when a new attorney becomes involved. Being proactive with ongoing conflicts checks helps to protect your client and to guard against malpractice.
Before You Can Check for Conflicts, You First Need Clients and FindLaw Can Help
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