Conflict management is
essential, not only to ensure you comply with your ethical obligation to avoid
conflicts of interest but also to prevent loss of work. Your conflict system,
whether manual or electronic, requires a centralized index or database in which
conflicts can be checked.
Although it is possible to use a
manual conflict management system, it is preferable to use a centralized
computerized conflict management system. This is particularly so as your
practice grows. You need routine procedures to check for conflicts before opening
a file and before you receive confidential information from a potential client.
There are many software packages
for conflicts management, either as standalone products or as supplements to
other law firm software packages.
For a system to work, it needs
to be integrated with the other systems in your practice and no file should be
opened or work performed on a file until the conflict search has been
conducted. In fact, you should never even speak to a prospective client
before conducting a conflict search.
You should use a conflicts of
interest checklist. The Law Society of British Columbia has published a Model
conflicts of interest checklist to help you evaluate and
enhance your procedures.
Law firms of all sizes are
well-advised to implement the following practices:
- Establish a central system for conflict
analysis by integrating the conflict checking system with other office
systems and support it with a conflicts avoidance policy. No file may be
opened or work started on a file until a conflict check has been successfully
completed.
- Establish a client intake process and
written policy requiring all staff to check for potential conflicts before
opening a file.
- Check for potential conflicts prior to
receiving confidential information from any potential client.
- Record the names of everyone seen by you
and other lawyers in your firm, whether accepted as a client or not, and
include rejected clients’ names in the conflict system.
- On voicemail greetings include warnings
for callers not to leave confidential information.
- Include terms of use and disclaimers on
the firm website warning site visitors that unsolicited information or
materials sent to the firm or left on voicemail will not be guaranteed
confidentiality and that access to or use of the site or voicemail does
not create a lawyer-client relationship.
It is also essential to educate all members of your firm regarding the
legal principles established in the case law and in the relevant ethical codes.
Ensure that your support staff and other lawyers understand the conflict Rules and
how the conflicts system operates, and that all staff participate in its
operation.
There are many data identifiers you can enter into your conflicts
system. As a general rule, more information is better but the information also
has to be relevant and the data has to be entered correctly. File
information in the conflict management system should include the following:
- names of current and former clients;
- client name, including known aliases and
spelling variations;
- trade names of the client;
- affiliates, parent companies,
subsidiaries and partners of the client;
- directors, officers or shareholders
of a client;
- adverse parties, known at the time of opening the
file or later identified;
- co-plaintiff, co-defendants, third party
defendants;
- known relatives of client and other
parties;
- common-law spouses of clients and other
parties;
- lawyers and firms representing any
party to the matter;
- names of individuals seen on one-time
consultations;
- people who have been denied
representation;
- the subject matter of the representation;
- entities in which any lawyer in the firm
may have a significant investment; and
- names of lawyers and staff in the firm.
Derived from Managing
Conflict of Interest Situations published by Lawyers'
Professional Indemnity Company.
Ensure that you do not give legal advice over the phone or during casual
social contacts to people who are not prospective clients. Treat work for
friends and family with the same formality as other work, even if working for
free or at reduced rates. All prospective clients should be seen in the office
and a conflict search must be conducted before any lawyer receives confidential
information from them. When a current client makes an inquiry about a new
matter complete a full conflict check before agreeing to represent them.