checklist of essentials of conflict checking systems

The underlying structure of a conflict checking system

A successful conflict checking system is an integral part of the law practice, and has the following criteria:
It is integrated with other office systems.
It is supported by a conflicts avoidance policy ­ e.g. no file is opened nor is work started on a file until a conflict check has been made and returns have been cleared.
All members of the firm, lawyers and staff participate, with zero tolerance for opting out of the conflict checking system.
Lawyers communicate within the firm regarding clients and potential clients.
Client intake procedures exist for analysis of and decisions about new clients and new matters e.g. management must approve all new clients and matters before work begins.
Education and training about conflicts and the firm's procedures are ongoing. As responsibilities for lawyers and staff differ greatly, separate training must be developed.

Information needs of a conflict checking system

Key to a successful conflict checking system is the information input process. Information entered into the system must be complete, consistent and comprehensive and should include data on:
new, current and former clients
family members and allies of clients
one-time consultations
people who have been denied representation
the subject matter of representation
all parties involved or connected with the matter, including their counsel, their relationship with the client and their role in the matter
adverse parties in a litigation or transaction
board memberships and organization directorships
parent or controlling shareholder of the corporate client
directors of the corporate client
subsidiaries or affiliations of the corporate client
trade names of the client
partners of partnership client
all lawyers and staff in the firm, including family members
lawyers' significant investments in the client/s' business.

Using a conflict checking system

Even the most comprehensive conflict checking system can be ineffective if it is not used properly.

When checking for conflicts, you need to:
Create procedures to require conflict checking and provide for easy access to data for everyone in office.

Conduct a conflict check at key trigger points:

  • when the first request for services is received;


  • after the first meeting where more information about who is involved in the matter is obtained; and


  • during the engagement if a change occurs concerning the parties.

Note that other checks may be necessary depending on the practice specialty.

Include a check of various alternative spelling options.
Circulate an inquiry among lawyers and staff about a new prospective client or matter and ask if they know of the existence of any conflict.
Assign responsibility for checking to someone and develop a method for recording that a check was done.

Follow-up procedures for a conflict checking system

To maintain an effective conflict checking system, the following follow-up procedures should be in place:
Circulate a list of new files opened to all lawyers and staff as a further check or back up to the conflict checking process.
Put a written record of the conflict check in the file: Documentation is key.
Assign a lawyer or committee to advise on conflict matters.
Obtain management approval of board appointments whether or not a company is a client.
Establish a procedure for retaining outside counsel ­ for both yourself and your clients ­ when difficult issues surface.
Regularly review policies and procedures on conflicts, and check whether all lawyers and staff are implementing procedures.


 

Last update: Oct. 7, 2002