Attorney David Wilkinson offers his four-step guide to driving clear of conflict-of-interest sand traps.
As lawyers, we learned early in our Professional Responsibility class that we cannot represent (or even talk with a potential client) who has an adverse interest to a current or former client. Providing legal advice or even talking with a person with adverse interests to a former or current client can lead to malpractice lawsuits, disgorgement of fees, disqualification, and disciplinary action.
A recent ABA Journal article discussed the frequency of conflict of interest malpractice claims, which may be a surprise to many attorneys. You need to protect yourself from committing an error that is really easy to avoid when applying the proper procedures. This four-step guide is designed to help.
Step One: Research your options
There are a number of options available to lawyers to assist them in checking for conflicts. These include:
- The paper option: Using index cards, many attorneys handwrite the contact information for new clients who call (not recommended).
- Computer programs: Traditional software programs, which have to be installed on computers and networked to other computers, are available to lawyers. These systems are usually older, but can be effective.
- Create your own: Some attorneys hire a technology expert to create a system for their firm, or create a program using software like MS Excel.
- All-in-one systems: Programs like Clio and Lexis Nexis Firm Manager have a conflict-checking feature within the system. All-in-one systems are generally expensive, but are useful in that they employ calendaring systems and billing software, which are both essential. The conflict-checking capabilities in these systems are not ideal, however.
- Cloud-based systems: Stand-alone conflict checking systems like www.clientconflictcheck.com (full disclosure: I’m a founding member of the company) can be inexpensive and effective solutions for small and medium-sized firms.
Step Two: Select your program (or create your own)
Whether you purchase a system or create your own, ask yourself these important questions beforehand:
- Does the conflict checking method accurately and intuitively check for conflicts?
- Does the method comply with your state’s professional rules of conduct for checking for conflicts?
- Is the client conflict checking method affordable?
- Is the program time-efficient?
- Does the conflict check program work from anywhere, at any time?
- Can all the attorneys and staff in the firm use the system at once?
- Does the program allow a lateral-moving attorney to input his or her conflict database into the system?
- Can the system provide customizable reports?
- Does the program work quickly when new clients call?
- Can my old data be easily imported into the client conflict check system?
Step Three: Allow access
Because every lawyer in a firm is “imputed” with knowledge for every other lawyer, it is imperative that all lawyers and their staff have access to the conflict check system. Ideally, the system should allow the person taking new client calls to input the data directly into the system before the client ever speaks to an attorney.
Step Four: Use the program accurately
You could spend a fortune on law firm management software or another system designed to check for conflicts, but it will do no good unless everyone in the firm actually uses the software. Likewise, if inexact data is input into the system (i.e., incorrectly spelled names or other identifying factors), the system will not provide much assistance. Every attorney and staff member should be trained to ensure names and other identifying information is correctly input into the system. (For example, at our firm, we repeat the spelling of names at least twice to ensure accuracy.)
For more information about conflict checking for law firms, visit Client Conflict Check or read our full guide. WSBA members receive a lifetime 15 percent discount. Use promo code WSBA15P at checkout or when you sign up for a free trial.