Question of the Week: What’s the best way to run a conflict of interest check?
Every client intake process should start with a conflict of interest check to avoid any compliance issues or potential malpractice claims. During the check, you’ll want to see if there are any ties between the prospective client and any of your connections, including previous clients as well as non-matter related relationships. Once connections are found, you’ll need to determine if it could result in not representing your client’s best interests if you take on their case.
The American Bar Association has a large number of rules that dictate how conflict checks must be carried, what constitutes a conflict and the requirement to abstain from accepting cases where your ability to provide quality representation may be compromised due to a conflict. Given how important they are, relying on memory should be avoided at all costs when doing these checks. You want to be sure you’ve exhausted all possible connections when evaluating for conflicts and memory alone is not sufficient to recall any and all contacts.
Instead, you should use one of the following methods to evaluate any potential issues:
Given the large numbers of connections and clients that lawyers amass over the years, manual checks can be exceptionally time-consuming and prone to error. For lawyers who are running a conflict check this way, it’s important to keep an updated single list rather than keeping information in multiple places, such as email and paperwork.
Using technology to conduct a conflict check is highly recommended. Programs used for practice management often have the ability to connect individuals to matters and businesses, creating connections that can then be caught with full-text searching for conflicts. This method not only cuts down on the time the process takes but also ensures the accuracy of the check. However, it’s important to remember that you must either connect programs that information may be spread out across if not all of your contacts are contained within a singular location.
Legal-specific, Centralized Database Check
This option will ensure any possible connections are caught, with information being stored in one database. This eliminates the chance that a potential conflict wasn’t caught due to its location in another program. Legal-specific programs are also created to evaluate not just the individuals, but also any companies or previous matters they may be tied to. Many of these programs have a conflict check feature built directly into it to create a streamlined, easy-to-run process.
No matter what system you’re using, you should be recording as much information as possible when adding a contact in order to avoid missing any connections. While you may not have all of this information, any of it you can enter will be helpful including:
- Family and friends of clients and staff members
- Clients that were represented at another firm
- Officers and directors of any companies you’ve represented
- Any trade, alternate names or subsidiaries of a company
- Adverse parties
You should also constantly update your list rather than waiting until you are about to run a check to add in any new connections. If you wait, you’re likely to forget to add in an individual or entity. It’s also important to check any additional system notes in regard to a contact and what impact they may have on your potential representation, as it may not be apparent at first glance.
Conflict checks are a critical step in evaluating a potential client and should be conducted when possible before even scheduling a consult. The right tools will make the process simple as long as you are diligent in regularly recording any contacts and their related details. Be sure to choose a method that’s going to catch any potential conflicts to avoid problems down the road.
For more information, check out How Do I Run a Conflicts of Interest Check?