How Can Law Offices Efficiently Check for Conflicts of Interest?

A good client intake process involves a little planning, but it should pay back dividends in terms of time saved once it’s up and running. This is especially true for conflict of interest checks, which are critical for the intake process.

The importance of conflict of interest checks

Conflict of interest checks should be done before signing an agreement with a new client. The entire intake process gives clients a first impression of the law firm, including running an effective and efficient check for conflicts.

Conflict of interest checks need to be run against both professional and personal connections for you, your staff, and current and former clients. This is an extensive enough list that one should never do a check from memory alone.

It can get even more complicated when you consider lawyers in your firm who worked as solos or with other law offices prior to joining your practice and have previous client connections of their own.

Conflict of interest checks should be run against:

• Current and former clients, and their family
• Staff members and their family
• Clients represented by a staff member’s former firm
• Companies you’ve represented and their officers and directors
• Trade names, alternate names, or subsidiaries of companies you’ve represented
• Adverse parties
• Common variations of client names, i.e., “Dan” versus “Daniel”

Given the amount of information new clients need to be checked against, it’s easy to see the value in streamlining your intake process. If a conflict is discovered, you generally shouldn’t take on the client.

Real consequences

Skipping the conflict of interest check can have real consequences. It’s a violation of the American Bar Association’s Model Rules and compromises your ability to represent your client well.^[1], ^[2], ^[3]

Lawyers have, in fact, faced malpractice suits for taking on a matter that is adverse to a former or current client.^[4]
And not just one malpractice suit, but two—one from each party. Ethically and logistically, it makes more sense to do things right the first time around.

Methods for running a conflict of interest check

Like many aspects of running a law office, how lawyers run conflict of interest checks has changed with time. Memory, as we mentioned above, isn’t a legitimate option.

Manual check

Historically, law offices conducted manual checks for conflicts of interest. In addition to being riddled with opportunities for error, it’s also time-consuming and generally not the best use of your staff’s time.

However, if you proceed with manual checks, note that you will need to keep all client information in one place. Otherwise, you’ll set yourself up to miss potentially meaningful connections.

Searching a spreadsheet

Searching a spreadsheet has, for some lawyers, become the modern shortcut of the manual check. The appeal is that everything—client names, matter details, company names—are all supposed to be in one place.

The downsides are that it can get unwieldy, and there’s still a good chance for human error. Additionally, the larger the spreadsheet, the more you’re asking the computer to do, and it may slow down or even freeze up other processes.

Centralized, legal-specific check

Legal-specific software is designed with a law firm’s routine administrative tasks in mind—and this includes running a conflict of interest check.

Particularly if your clients are filling out online intake forms, details can automatically be stored in one, centralized location. You can also go back and update client information at any time—a process that’s a little easier to do on software designed for it than with a spreadsheet.

Although certainly faster than a spreadsheet or manual check, a legal-specific program will only be as good as the information you put into it. So when taking on new clients, be sure to get complete information.

Then, you can run conflict of interest checks against:

• Current and former clients
• Companies you’ve represented
• Staff members’ families
• Clients’ families
• Adverse parties
• Various officers and employees of companies you’ve represented
• More

Conducting a thorough conflict of interest check early on can save a lot of time and problems down the line.

What to do if you identify a conflict of interest

In general, if you identify a conflict of interest, you shouldn’t take on the client. Instead, write them a non-engagement letter—yes, creating a written record is always important—stating that you can’t take them on.

If a client is up against a deadline for proceeding with their case, such as making a personal injury claim before a set amount of days have passed, the polite thing to do is to mention it in the letter so that they are aware of the time crunch.

If a conflict of interest emerges, later on say, through one company merging with another, you have a couple of options. First, it may be possible to get informed, written consent of the current or former client, as well as from the new client, to proceed despite the conflict of interest. Alternatively, your client can switch counsel.

Lawyers will sometimes use these tactics to cover for situations where a proper conflict of interest check was never run in the first place. However, that’s not what they’re intended for.

You don’t want to be in the situation of telling a client there’s a conflict of interest that’s been there all along, and you either need them to find new counsel or sign a form that effectively says they might not get the best representation.

Stay compliant with strong conflict of interest checks

Ultimately, the goal should be to run a proper check at the beginning—and save your firm’s reputation and the client’s time.

Conflict of interest checks should always be run through a centralized database versus trying to piece together multiple different sources of information.

Additionally, the process can be swifter, more focused, and more efficient if you use legal-specific software for the search. You don’t need to go out and buy a license to yet another uber-niche program, either. Your practice management program should have the option to run a legal-specific search of your already existing database.

Once they’re a standard part of your new client process, conflict of interest checks offer a chance to gather critical information quickly and effectively—and save you from the potential for unpleasant consequences down the line.

References

1. ABA Rule 1.7: Conflict of Interest: Current Clients
2. ABA Rule 1.8: Current Clients: Specific Rules
3. ABA Rule 1.9: Duties to Former Clients
4. Conflicts of Interest: Risk Management Practice Guide of Lawyers Mutual