Conflict management is essential, not only to ensure compliance with the 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.
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.
There are many software packages for conflicts management, either as standalone products or as supplements to other law firm software packages.
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 a lawyer, 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 the firm regarding the legal principles established in the case law and in the relevant ethical codes. Ensure that support staff and 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
names of lawyers and staff in the firm
Derived from Managing Conflict of Interest Situations published by Lawyers'
Professional Indemnity Company.
Ensure that legal advice is not given 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.