Checking for conflicts is like paying taxes – sort of painful, but necessary. Every lawyer has their own method for checking for conflicts – some use a manual system, some have a digital system, some use office automation. Perhaps your practice management software has a conflict-checking function; maybe you use a spreadsheet or some stand-alone product – maybe you are old school and use index cards.
Unlike mid- or large firm lawyers, who may have trained staff to conduct conflict checks at predetermined intervals, for most solo/small firm lawyers, when it comes to conflict checking the buck stops with the lawyer. Having a reliable system into which to enter names of parties, involved individuals or business entities, opposing counsel, actual and potential witnesses, etc. is only half the battle. The other part, and possibly the more painful part, is actually doing the conflict check at the outset and then continually during the representation as the need presents itself.
When is that, exactly? Well, you know that you are going to check for conflicts (actual and potential) before getting confidential information from a potential new client. You’ll be checking for conflicts (at a minimum) with the client, their business or employer, individuals involved in the legal issue with which they are presenting you including the potential opposing party, their business or employer, and their lawyer if they have one. How often after that should you be checking for conflicts? As with most things legal, the answer is “it depends,” and there is no way to set out the parameters without knowing more about the substantive area of law, the nature of the claim and other details.
General guideline: you should check for conflicts whenever a new individual, business entity or other party is added to the case. If a new witness or potential witness is identified, recheck for conflicts. Is that all? Well, maybe. You know your case best and you will have to be alert for actions or occurrences in the case that could cause a conflict to arise, or a potential conflict to become an actual conflict. And finally, the Rules of Professional Conduct remind us that our own personal interests may create a conflict.
Bottom line: You need a system that works well for you and that you diligently use. It has to be one you are comfortable with, that is relatively simple to use and has to be part of your regular routine. The greatest conflict checking system in the world won’t work unless you use it correctly and diligently.