checklist for managing a subsequent conflict

The approach suggested for managing conflicts identified before the representation begins is equally appropriate for conflicts which arise unexpectedly and subsequent to the commencement of an engagement. Some additional questions, however, need to be considered when managing a previously foreseeable conflict; these are outlined below.

Previously foreseeable conflict of interest situations

	Review the disclosure document and written consent which was prepared in light of the acknowledged potential for conflict; it may be that you determined a plan of action back then that you will now implement.
	Consider whether the matter has become contentious, making representation impossible at least for some of the parties affected.
	Discuss with all clients and parties affected that the conflict previously warned about has now materialized; review the nature, extent and implications of this conflict.
	If it is still appropriate to continue the representation, prepare a new consent in writing which outlines your disclosure and have it executed by all affected parties.
	If representation becomes limited to only one or two of the parties, prepare non-representation letters for those who are no longer being represented and direct them to obtain independent representation for the remaining portion of the matter.
	Suggest that the parties obtain independent legal advice with respect to the consent being executed.
	Be alert to future signs that the representation of one or all of the parties is no longer appropriate.
	Re-examine conflicts policies and procedures and incorporate any changes that might be necessary to avoid subsequent conflicts.To elicit an informed consent to waive a conflict of interest, you are obliged to explain in plain language the circumstances of the conflict.

Last update: Oct. 7, 2002