How to Conduct a Conflict Check: Best Practices for Law Firms

Conflicts of interest for lawyers are a serious matter with significant ethical and legal implications. Failing to identify and address conflicts can lead to malpractice claims, disciplinary action, and damage to a law firm's reputation.

In this article, we will answer the question: What is a conflict check? We’ll also go over the best practices for conducting thorough conflict checks within your law firm, ensuring ethical representation and client trust.

Understanding Conflict Checks for Law Firms

Conflict of interest arises when a lawyer’s representation of one client is compromised by obligations to another client, a former client, or the lawyer’s personal interests.

This can manifest in various ways, such as representing clients with opposing interests or using confidential information gained from one client to benefit another. The consequences of such conflicts can be severe—ranging from disqualification from a case and financial penalties to bar complaints and damage to the lawyer's professional reputation.

Conflict checks are a proactive measure to identify and address potential conflicts before they arise. By diligently screening potential clients and matters against existing and past representations, law firms can ensure they are fulfilling their ethical duties and protecting their clients' interests.

Lawyers also have a fiduciary duty to their clients, which includes the duty of loyalty and confidentiality. Conflict checks help lawyers uphold these duties by ensuring that their representation of one client is not compromised by obligations to others.

Furthermore, various rules of professional conduct, such as the American Bar Association (ABA) Model Rules, explicitly require lawyers to avoid conflicts of interest. Failure to conduct proper conflict checks can result in violations of these rules, leading to disciplinary action and potential legal liability.

Relying on a standalone conflict check system can be time-consuming; however, case management solutions mitigate this risk by incorporating comprehensive conflict-checking databases directly into their platform. This integrated approach ensures a more thorough and reliable conflict-checking process.

Identifying Potential Conflicts of Interest

A conflict of interest arises when a lawyer's ability to represent a client is compromised by other obligations or interests. This can occur through the following:

• Direct adversity: Representing opposing parties in the same matter.
• Material limitation: A lawyer's personal or other fiduciary duties interfere with client representation.
• Imputed conflicts: When conflicts affect all lawyers in a firm due to one attorney’s involvement.

Challenges and Mistakes in Conflict Checking

There are some challenges and common mistakes in the conflict check legal process, particularly as attorneys grow and handle more complex cases. These include:

• Insufficient or unstructured data management: Maintaining accurate and up-to-date information on all clients, related parties, and matters can be difficult, especially with large volumes of data. Inconsistent data entry, outdated systems, and data silos can further complicate the process.
• Lack of communication and information sharing: It is crucial to ensure effective communication and information sharing among lawyers and staff regarding potential conflicts. A lack of centralized systems or clear communication channels can hinder the identification and resolution of conflicts.

• Unorganized client intake procedures: Without a proper system for gathering client information, important details can be missed. 

• Incomplete or outdated records: Maintaining comprehensive and current records can be a significant challenge. Failure to update databases regularly can lead to missed conflicts—as older records may not reflect recent developments or connections.

• Failure to check relationships beyond direct clients: Many conflicts arise from relationships involving related parties, such as opposing counsel, co-defendants, or corporate affiliates. Focusing solely on direct client relationships can result in oversight and potential ethical violations.

Step-by-Step Guide to Conducting a Conflict Check

A thorough conflict check is crucial to ethical legal practice, protecting both your clients and your firm. Here's a step-by-step guide to ensure a comprehensive process.

1. Initial Client Information Review

Begin by meticulously reviewing the potential client's details. Pay close attention to their full legal name—including any variations in spelling or nicknames, and gather information on any previous names they may have used (maiden names, married names, etc.). Obtain their birth date to distinguish them from individuals with similar names. Collect current and previous contact information, including addresses, phone numbers, and email addresses. Identify any companies, partnerships, or organizations the client is associated with. Finally, inquire about family members, business partners, or other potentially relevant connections.

2. Database Search

Cross-reference the potential client's information against your entire client list, including closed matters, and search for any instances where they have been an opposing party in a previous case handled by your firm. Extend your search to include subsidiaries, parent companies, or any other organizations linked to the potential client. Make sure to utilize any advanced search capabilities your system offers, such as wildcard searches, phonetic matching, or relationship mapping.

3. Reviewing Potential Matches

Carefully analyze any potential conflicts flagged by your search, keeping in mind the specific circumstances of each. Determine the nature and extent of the potential conflict: Is it a direct conflict, an imputed conflict, or a potential for a material limitation? If the matter is urgent, prioritize conflicts that could impede immediate action.

4. Internal Inquiries

Consult with other attorneys and staff within your firm who may have personal knowledge or experience with the potential client or related parties. Foster a culture where everyone feels comfortable raising potential conflict concerns. Also, keep a record of who you consulted and their responses.

5. Documentation and Decision-Making

Thorough documentation is essential. Record the entire process, including the search parameters used, the results obtained, and the analysis of potential conflicts. Clearly record the final decision regarding the conflict check and the reasoning behind it. If a potential conflict is identified, document any efforts to obtain informed consent from affected clients.

To ensure maximum efficiency, start with a centralized, searchable database that allows detailed searches across various criteria, such as names, dates, or relationships. Standardized intake forms help ensure consistency in data collection, reducing the risk of oversight. Pairing this with technology that automates conflict checks, like CASEpeer, can save time, reduce errors, and uncover subtle conflicts. 

Furthermore, establish a consistent, well-documented process for conflict checks and provide ongoing training to staff to ensure they understand the system, recognize conflicts, and follow updates to the procedure effectively.

6. Ongoing Monitoring and Updates

Conflict checking is not a one-time event. Keep your client database current by regularly adding new clients and updating information on existing clients. Law firms should periodically review and update their conflict check law firm process to ensure they remain effective and efficient. Also, promote a culture of awareness within your firm regarding potential conflicts and reporting procedures.

All in all, to ensure maximum efficiency, start with a centralized, searchable database that allows detailed searches across various criteria, such as names, dates, or relationships. Standardized intake forms help ensure consistency in data collection, reducing the risk of oversight. Pairing this with technology that automates conflict checks, like CASEpeer, can save time, reduce errors, and uncover subtle conflicts. 

Furthermore, establish a consistent, well-documented process for conflict checks and provide ongoing training to staff to ensure they understand the system, recognize conflicts, and follow updates to the procedure effectively.

Addressing Conflict Scenarios

Even with the most diligent conflict check process, issues may still arise. When this happens, transparency is crucial. Openly communicate with the potential client about the nature of the conflict and any potential implications for their representation. In some cases, you might be able to proceed with representation if all affected clients provide informed consent. This requires full disclosure of the conflict and its potential ramifications, preferably in writing, and clients should be advised to seek independent legal counsel before consenting. 

However, when a conflict cannot be effectively waived or poses a significant risk, the best course of action is to decline representation. Clearly communicate this decision to the potential client in writing and advise them to seek legal counsel elsewhere promptly. In limited circumstances, law firms may implement "ethical screens" to isolate conflicted lawyers from a case, but this should be used cautiously.

In situations where a conflict is identified but representation might still be possible, a waiver can provide a path forward. A waiver is a client's voluntary agreement to allow representation despite a conflict. For a waiver to be valid, the client must give informed consent, meaning they fully understand the situation. It's best to obtain waivers in writing to avoid future disputes. Bear in mind, not all conflicts can be waived.

CASEpeer Helps Personal Injury Lawyers Manage Conflict Checks 

Managing conflicts of interest can be complex and time-consuming, especially for busy personal injury firms. Rather than having a separate tool for conflict checks, CASEpeer integrates practice management and conflict checks into a single, easy-to-use platform.

CASEpeer automates the conflict check process by cross-referencing new client information against your existing caseload. The software then sends alerts to designated users when potential conflicts are detected, ensuring timely action. 

In addition, advanced search functionality allows your firm to search by various criteria, including names, case types, dates, and relationships, to uncover even subtle connections. All client and case information is stored in a centralized, searchable database for easy access and consistency.

Ready to streamline your conflict-checking process and ensure ethical representation? Schedule a free demo of CASEpeer today.