In this profession, we see and hear a ton about the way law firms are run. The scariest part of my job? Listening to how law firms do conflict searches.
We know states may have different rules governing the Professional Conduct of Attorneys, so we will just rely on the ABA’s Model Rule on the subject, found here.
It is pretty safe to say that no matter what state you are in, no matter what practice area, no matter the size of the firm or the length of time you have practiced – you should be doing conflict searches. Just in case. And, you know, to protect your clients and yourself, your law firm, and the employees who depend on you.
Stop for a minute and write down the process you believe is followed for running conflict checks. Now, ask every person in your firm to write it down. Compare notes. Are they the same? Is everything happening that you THOUGHT was happening? Would you bet your Bar Number on the accuracy and integrity of your conflict searches and conflict avoidance process?
Some common processes we see include:
- We send an email to everyone in the firm and ask them to let us know if they recognize the name or see a conflict.”
- That’s a decent start, but if that is all you do – you might want to stop reading and go increase your malpractice coverage.
- Do you send that email to every person who has ever worked for you?
- How do you know when the answer is “no, I do not see a conflict?
- Do you require that all firm members respond and indicate in writing that they don’t think there is a conflict?
- Does No Reply = No Conflict?
- “We run a search in our Billing Program”
- Not a bad ELEMENT To a bigger process. But again, if that is all you do…
- If you represent the Plaintiff, did you send the Defendant a bill?
- Are you certain the adverse party names are in your Billing program?
- Are you relying on the mention of a name in a time entry to return a result?
- We do XYZ law, so we really don’t have to deal with Conflicts.
- I suppose there are exceptions, but I struggle to find one that should really exclude a firm 100% from running a conflict check.
Consider the last malpractice application you completed. How did you answer the question about Conflict Checks? Does the answer truly represent what is happening in your firm?
You have a professional obligation to avoid conflict, and frankly, it is just good business. Getting sued because you failed to recognize a conflict, having to forego fees in a case because you recognized a conflict too late, and compromising your client’s position in a proceeding because you failed to recognize a conflict is no laughing matter.
Need help identifying, or developing your Conflict Search process, or other internal processes? Let us help.