how to screen an attorney for conflicts

What causes conflict of interest with a lawyer?

What does it mean when a lawyer runs conflicts?

What is legal conflict check?

How do you do a conflict search?

When should you run a conflict check?

How do you know if there is a conflict of interest?

Is conflict of interest a law?

What is client conflict check?

What is an example of a conflict of interest?

How do you run a conflict check in time matters?

What is another word for conflict of interest?

Which of the following is a concurrent conflict that often prohibits the lawyer from representing both parties?

How to check for conflicts in Excel?

Use case management software. You can type up a list of your client information in Excel and check it as part of your conflicts check. However, the best case management software will allow you to perform thorough conflicts checks quickly.

What to ask a new client about their dispute?

Ask the new client why they need your services and compare this dispute to the matter you worked on for the former client .

What is a conflict check?

Generally, a conflict check consists of checking whether a new client is adverse to other clients you have represented, past and present.

What is a conflict of interest?

A conflict exists if the parties are adverse. The most common conflict of interest involves a new client who wants to sue one of your current clients. Here, the clients are clearly adverse to each other so there is a conflict. For example, you represent A in ongoing employment litigation.

What is a client in a letter?

A client is a former client when you have completed all work and issued a letter to the client closing the matter.

Can a lawyer represent only one side of a dispute?

Although some lawyers represent clients on only one side of disputes, you are free to represent either side. However, a potential conflict could exist when you make inconsistent arguments in different cases. You should be alert to this at the conflicts check stage.

Can lawyers represent you in a conflict?

Analyze whether you will make inconsistent arguments. Lawyers are generally free to represent who they want. For example, you can represent a victim of workplace sexual harassment and also represent employers accused of sexual harassment. Although some lawyers represent clients on only one side of disputes, you are free to represent either side. However, a potential conflict could exist when you make inconsistent arguments in different cases. You should be alert to this at the conflicts check stage.

What to do if your conflict check indicates a potential conflict with a client?

If your conflict check does indicate a possible conflict with a potential client, then you'll have to consult the Rules of Professional Conduct in your jurisdiction to see if it is an actual conflict or a potential conflict.

When to do conflict checks?

You check at the intake stage, when a new party enters the action, and when a new attorney becomes involved. Being proactive with ongoing conflicts checks helps to protect your client and to guard against malpractice.

What is conflict checking system?

A conflict checking system is really nothing more than a list of client names. However, to be effective in identifying conflicts, it needs to capture as much information as possible. At a bare minimum, a conflicts database for current and former clients should include the following: Client Name. Matter Number.

What is the best way to manage conflicts of interest?

To be effective in managing conflicts of interest, you need the names of everyone associated with your client and the matter in question. An appropriate intake system will help to capture the names of spouses , children, employers, insurance carriers, and businesses.

How to avoid conflicts of interest?

Because of this, attorneys must be careful to avoid conflicts of interest that could lead to disqualification from representation or, worse yet, malpractice. How should an attorney guard against potential conflicts of interest? The key to managing conflicts of interest is keeping good records and taking an abundance of caution when deciding to represent a new client.

What is a letter refusing representation?

Letter Refusing Representation. If an actual or a potential conflict exists and you either cannot obtain a waiver or you feel it's in another client's best interest that you not represent them , then you need to send a non-engagement letter to the potential client declining representation.

Why is it important to do a conflict check?

It's important to collect this information and do the conflict check before you have any extensive discussions of the case with the potential client. After all, you don't want to be in the position where you may be disqualified from the case altogether because a party revealed case details before you realized you were already representing someone with adverse interests.

What is the most common mistake in a law firm conflict check?

Common mistakes with law firm conflict checks. The most common mistake with a law firm conflict check is to simply not do it. A lot of attorneys rely on memory. This is obviously a bad idea.

What to do if a conflict is flagged?

If a conflict is flagged, or even suspected, the person answering the phone can schedule a follow-up call with the attorney to discuss the matter. Indicate that the firm has time to investigate (and to evaluate whether the case is worth dealing with conflict waivers).

What happens if you botch a conflict check?

Some lawyers say that the worst thing to happen if you botch a conflict check is that you find out too late. At that point, either someone else takes over the case, or you convince the affected clients to sign waivers. That’s probably true in most cases. In others, the delay in swapping out counsel or chasing conflict waivers can harm your client (consider a client waiting on a payoff in an injury case or with an upcoming statute of limitations deadline).

What is a conflict check in law?

What is a conflict check at a law firm? Basically, conflict of interest rules state that you can’t represent a client whose interests are adverse to your own or to a former client. It doesn’t sound particularly complicated, but there are multiple Model Rules dedicated to the concept, including a list of prohibitions that might as well be titled, ...

How to record a conflict check?

are recorded. Do a simple “CTRL+F” or “CMD+F” and start typing in variants of names, nicknames, etc. Make a note in the file or intake notes that a conflict check was run, who ran it, and what date and time it was completed.

What does "taking on a client" mean?

Taking on a client where your abilities to lawyer are limited due to responsibilities to a current, former, or third person (personal interest of the lawyer). If you represent the opposing party in the same matter after dropping a client.

What is the best practice for taking a case?

Best practice, if you must take the case, is to give them the opportunity, in writing, to retain counsel regarding the potential conflict. Both the former client and current client must consent. A better remedy, assuming the client has other options for counsel, is to not take the case on at all.

What are the conflicts of interest in a lawyer?

There are a variety of conflicts of interest that can prevent a lawyer from taking on a particular case. The conflict may occur between the prospective client and one of the attorney's current or former clients. There can also be concerns if a client's interests are in conflict with the lawyer's professional or personal relationships.

What are the duties of a lawyer?

In the legal field, however, one of the legal duties every lawyer must observe is to avoid conflicts of interest when it comes to their clients. In fact, if a lawyer represents a client knowing that there's a conflict of interest, they can be disciplined by the state bar and sued by the client for legal malpractice.

Do attorneys have to do conflict checks?

While an attorney may be able to easily identify a conflict, sometimes they're not always easy to spot. Because of this, it's the attorney's responsibility to perform regular conflict checks when taking on a new client.

Can an attorney answer questions about conflicts of interest?

An attorney can not only answer any questions you may have about the scope of an attorney's obligations to their client, they can also answer other questions you may have about the law.

Can conflict of interest be a real problem?

Conflicts of interest can occur in a number of real-life situations. While these may be ethical dilemmas, acting one way or another will not likely lead to any kind of formal punishment. For example, if a business executive is her son's direct manager, there will likely be a conflict of interest when she has to conduct a performance review of her son's work. This might create a problem for the company and lead to policy changes, but it wouldn't necessarily violate any laws.

Can a law firm represent a client?

It's also important to note that a law firm may be able to represent a client even though a single attorney had a conflict of interest, if a "firewall" can be successfully put around the attorney with the conflict. This essentially means that the matter would not be discussed with or around the attorney with the conflict, ...

Can a conflict of interest occur at the law firm level?

It's also possible for there to be an issue if the potential client's interests are at odds with the attorney's own interests. A conflict of interest can also occur at the law firm level. For example, even if an attorney working at a law firm didn't personally work on a particular matter (because someone else at the firm handled it), ...

How do I respond to conflict?

Whether you are a lawyer, a doctor, a plumber, or a married couple, most people essentially respond to conflict in one of four ways: 1 Avoidance/Impasse – For many persons, they see any conflict as an impasse. So, they respond by avoiding conflict altogether without ever resolving the conflict. The result for both parties? Lose/Lose. 2 Giving In – Likewise, there are many persons who are so adverse to any form of conflict that they simply “give in” to the other side. The result? The side that “gives in” loses and the other side wins. 3 Competition – This is the principle way that I see many lawyers, especially some of the newer lawyers, approach the representation of their clients. Essentially, they take an aggressive “winner-takes-all” approach to any dispute. If you want to learn why aggressive lawyers don’t make effective lawyers, click here. The result is either a lose/lose (scorched earth result) or a win/lose. 4 Compromise – This approach is the hallmark of any skilled negotiator and the best result in any conflict. Only through compromise can the parties each share a bit of the loss, but ultimately both share in a “win.”

Why is conflict inevitable?

Conflict is inevitable. As uncomfortable as conflict may be, conflict presents opportunities for change, growth, and a better understanding of others and their perspectives. Additionally, voluntary resolution of conflict empowers people and strengthens their sense of personal responsibility. After all, most people make better decisions for themselves.

Why is screening allowed in Georgia?

Interestingly, Georgia limits screening as a way to avoid imputed conflicts of interest — only former public sector employees, arbitrators and judges (and now non-lawyers) can be screened in order for the firm to avoid being disqualified.

What is the presumption in Green v. Toledo Hospital?

Toledo Hospital, where the Ohio Supreme Court held that imposing the presumption that a secretary who worked for opposing counsel shared in client confidences would “unfairly taint” her. Applying the presumption would make it particularly difficult for non-lawyer personnel in small towns, where the pool of available employers (and employees) is limited.

What is Hodge v. URFa Sexton?

URFA-Sexton, LP, the Georgia Supreme Court noted that the majority of courts reject the idea that non-lawyer conflicts are automatically imputed to the rest of the firm. Rather, most jurisdictions now allow firms to raise a screen to protect the confidential information that a non-lawyer has gained during prior employment.

Do non-lawyers have a choice?

Non-lawyers lack a financial interest in the outcome of litigation, and don’t have a choice about what clients they serve ;

Can staff come to your firm after working for opposing counsel?

In this age of employment mobility, staff members may come to your firm after having worked for opposing counsel on cases (or transactions) that you are handling. The staffer’s exposure to the other side’s confidential information can raise a conflict of interest that knocks you and your whole firm out of the box.

How can an attorney help with conflicts?

By combining a knowledge of the legal requirements with practical considerations, attorneys can help ensure that they don’t get into hot water over conflicts issues.

What is a conflict in a law firm?

First, perhaps the most obvious type of conflict is a simultaneous or concurrent representation conflict, which arises out of the representation of two clients at the same time. Such conflicts can occur when representing more than one client in a matter, or simply when a firm obtains a new client whose interests are adverse or are potentially adverse to another current client.

What are the rules for simultaneous representation in California?

The rules regarding simultaneous representations are strict . California courts hold that a simultaneous adversarial representation results in per se or “automatic” disqualification for the attorney “in all but a few instances.” M’Guinness v. Johnson, 243 Cal. App. 4th 602, 608, 196 Cal. Rptr. 3d 662, 666 (Cal. Ct. App. 2015) (citing Flatt v. Superior Court, 9 Cal. 4th 275, 283, 885 P.2d 950 (1994)). The reason for such a strict rule is because a concurrent representation of two clients with apparently opposing interests could call into question an attorney’s loyalty to the client.

What is the second type of conflict?

The second type of conflict occurs when there is a conflict between the representation of a former client and the representation of a current or prospective client. This type of conflict is often referred to as a “successive representation” conflict. In order to determine whether there is a potential conflict, California courts analyze whether there is a “substantial relationship” between the subjects of the antecedent and current representations. Flatt, 9 Cal. 4th 275, 283, 885 P.2d 950 (1994).

What is the most difficult decision for an attorney?

Often, the most difficult decision for an attorney is how to handle client relationships when there is a potential conflict. Some clients may not react kindly to being approached with a request for a conflict waiver by their attorney. However, in today’s world, most clients recognize that conflicts will occur and a conflict’s existence does not signal a lack of dedication or loyalty from the attorney.

When an attorney is asked to take on work that is adverse to the interests of a former client, the relevant inquiry

Thus, when an attorney is asked to take on work that is adverse to the interests of a former client, the relevant inquiry is usually whether the information obtained during the representation of the former client can be used in the representation of the new client. If the attorney did not and could not have learned any confidences and secrets that could be used to the former client’s detriment, then conflicts typically will not preclude the new representation.

Do simultaneous representations have the same disqualification?

Successive representations generally do not have the same “automatic disqualification” rule in part because, unlike simultaneous representation conflicts, the primary concern is not the duty of loyalty because the relationship with one of the clients has already ended. Instead, however, there may be concerns regarding maintaining client confidentiality, as the attorney could use confidential information obtained in the prior representation to the detriment of the former client in the new representation.

What happens when a lawyer's interests conflict?

Whenever the interests of a current client might affect, or be affected by, the personal, business, financial, or professional interests of a lawyer, a professional or business associate or relative of the lawyer, another current client, or a former client, there is always a possibility for the existence of such multiple interests to interfere with the lawyer’s ability to serve one set of interests without adversely affecting other interests . Whenever such interests become conflicting, it is necessary for the lawyer to withdraw from all attorney-client relationships affected by such conflict, and it is then necessary for each person to hire a new lawyer.

When checking the names of a new client for potential conflict of interest, it is necessary to take your search beyond the

When checking the names of a new client for potential conflict of interest, it is necessary to take your search beyond the names of your current and former clients. The list below suggests other parties that should be included in your search.

What is a conflict of interest in a lawyer?

[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

What are the critical questions in a lawyer?

The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

What is informed consent?

[18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client . See Rule 1.0 (e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality).

Why is a lawyer asked to represent several individuals seeking to form a joint venture likely to be materially limited in

For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others.

What are the principles of a lawyer?

General Principles. [1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts ...

Can a client terminate a lawyer's representation?

[21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

Can a lawyer consent to representation?

[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.