Conflict checks in law firms with a procedure small firms can keep

Informal checks fail for predictable reasons. The firm's records hold the client's name but not the names of the opposing parties, the insurer, the guarantor or the spouse. Names are entered differently each time, so a search for "Acme Holdings LLC" misses "ACME Holdings, L.L.C." and "Acme Hldgs". Lateral hires bring a history that never made it into the system. And the check happens after the consultation, when the lawyer has already heard confidential facts from the prospective client.

None of these failures come from bad intentions. They come from a process that depends on memory and on one person remembering to ask. A written procedure fixes most of them, and it also gives the firm something to show a malpractice carrier or a disciplinary authority if a conflict is ever questioned.

• Records that store only clients, not adverse and related parties.
• Name variants, typos and corporate families that a plain search misses.
• Lateral hires and of counsel lawyers whose prior matters are not in the database.
• Checks run after confidential information has already been received.
• No written record of who cleared the conflict and on what basis.

Most states base their conflict rules on the ABA Model Rules of Professional Conduct, though the wording and comments differ from state to state, so your own jurisdiction's version is the one that binds you. Three rules carry most of the weight.

Rule 1.7 covers conflicts with current clients. A concurrent conflict exists when one representation is directly adverse to another current client, or when there is a significant risk that the lawyer's responsibilities to another client, a former client, a third person or the lawyer's own interests will materially limit the representation. Some of these conflicts can be handled with each affected client's informed consent, confirmed in writing, provided the lawyer reasonably believes competent and diligent representation is still possible. Some cannot be consented to at all, such as asserting a claim by one client against another in the same litigation.

Rule 1.9 covers duties to former clients. A lawyer who represented a client in a matter may not later represent another person in the same or a substantially related matter whose interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing. The rule also restricts using or revealing information relating to the earlier representation to the former client's disadvantage.

Rule 1.10 covers imputation. While lawyers are associated in a firm, a conflict that would prohibit one of them from taking a matter under Rules 1.7 or 1.9 generally prohibits all of them, with exceptions such as purely personal interest conflicts and, under the Model Rule, certain lateral hire conflicts that are handled through timely screening and written notice to the former client. Many states have their own version of the screening exception, and some do not allow it at all.

Two related rules matter for intake. Rule 1.18 protects prospective clients, so information heard in an initial consultation can create a conflict even if the firm is never hired. And Rule 1.8 lists specific personal interest conflicts, such as business transactions with clients, that a name search will never catch.

The procedure below fits a small firm with no dedicated conflicts clerk. It assumes one person, often a paralegal or legal assistant, runs the search and one attorney signs off.

A firm's conflict database is more than a client list. At minimum each matter should store the client and its related entities, every adverse party, opposing counsel, other related parties such as insurers and co-parties, the responsible attorney, the matter type, and the open and close dates. Declined prospective clients belong in the same records, with a note on what information was received.

• Client name, former names and related entities.
• Adverse parties and their related entities.
• Opposing counsel and other related parties.
• Matter description, practice area and responsible attorney.
• Open and close dates, and whether the client is current or former.
• Declined prospective clients and what they disclosed.

Software makes the search part fast and consistent. Fuzzy matching catches spelling variants, punctuation and abbreviations that a plain search misses. A good tool searches clients, adverse parties and related names at once, groups hits by matter, and produces a report an attorney can sign. It also adds intake names to the database automatically, which removes the step most small firms skip.

What software cannot do is decide. Whether two matters are substantially related, whether a material limitation exists, and whether a conflict is consentable are legal judgments. A tool that tells you a matter is cleared without an attorney's review is giving you false comfort. The right setup puts the search in software and the decision with a lawyer, with a record of both.