In the 2018 Legal Technology Survey Report published by the American Bar Association, fifty-nine percent of solos indicated they had no conflict checking software, while thirty-four percent of lawyers in firms with 2-9 attorneys asserted they had no conflicts checking software available. There are many RPCs and many ethics opinions that contemplate client conflicts, including, but not limited to, Rules 1.7 and 1.8 (Current Clients), 1.9 (Duties to Former Clients), 1.10 (Imputation of Conflict). Rule 1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees), and Rule 1.18 (Duties to Prospective Clients).
Many solo practitioners and members of small firms think that they can handle conflict of interest checking on the fly. Solos often believe that reliance strictly on memory is enough to avoid conflicts. In small firms, paper conflict forms with the names of potential new clients are often circulated so that the other lawyers can perform a mental check, and are then filed away to gather dust. And then there is the Sneaker Net, which involves running around the office asking if anyone is aware of a conflict. In these instances, the conflict checking process is very much “in the moment” and is unmoored from any information the lawyers are unable to immediately bring to the front of their minds.
What Does a Good System Include?
Your conflict of interest check procedures should be appropriate for the size and type of your practice, but regardless of how small your practice is or how limited the number of practice areas you engage in, every conflict of interest system should include the following:
- The ability to easily gather and record information on all parties (and witnesses where appropriate);
- The ability to integrate this information with other office systems to eliminate duplicate data entry;
- The ability to allow both lawyers and staff to enter and access information as appropriate;
- The ability to do “fuzzy” searches for names that sound alike but are spelled differently;
- A requirement that all necessary information be gathered and checked before an initial consultation and again before legal services are rendered;
- A requirement that the check be documented; and
- A requirement and one or more reminders that checks be re-run whenever a new party enters the matter or a new lawyer or staffer with prior legal experience is hired by the firm;
- Written documentation on how to properly make a data entry and perform a conflict check.
The following information should be collected:
- Name – Include the last, first and full middle name of the person or full legal name of the entity. For entities, also include the names of principles such as partners, directors, officers, shareholders with controlling interests and key employees.
- Prior Names – Include all nicknames, prior or maiden names, aliases or former entity names or d/b/a names.
- File Title – Whatever you would put on the file tab if you created a paper file or name the folder within an electronic filing system.
- File Number – If you use a numbering system in addition to a file name.
- Responsible Attorney – Even if you are a solo include this information; you may add additional attorneys in the future.
- Status – Client, unaccepted client, office consult only, opposing party, victim, spouse, child, witness, insurer, creditor, testator, personal representative, heir, guardian, conservator, etc.
- Date – The date on which the record was created.
- Details – Anything about the person, particularly if their name is a common one, that might help future searchers determine the identity, status or relationship of the person or entity in the entry to persons in a future conflict search.
Even more considerations for the type of information that should be collected depends on the type of matter. Lawyers Mutual has a useful list (see page 7).
Conflicts Checks in Practice Management Systems
Most fully integrated practice management systems include the ability to check for conflicts of interest and, may be a better investment than stand-alone systems because they make it easy to enter all relevant conflict information at the same time that information about the client is being entered to open the matter. In addition, these systems allow you to pull your contacts, calendar, to do list, email, documents and time keeping and billing all together in one place.
Stand-Alone Conflict Checkers
If your firm chooses not to use practice management software, you can track conflicts in a spreadsheet or Word table. Due to limitations in standard contact managers like MS Outlook and Gmail, including lacking certain fields and the ability to run a comprehensive firm-wide search, these tools are not sufficient for a conflict check without significant customization and configuration. However, there are simple standalone conflict checking systems that help record and document conflicts check and ensure you are following the rules effectively.
This system is delivered as Software as a Service (aka “the cloud”) and has a 30 day free trial. The annual cost for a solo is $200 a year for 2 attorneys and it includes an import tool suitable for transferring information from other systems.
This installed software is free to test for up to 100 clients/for 30 days. The one time license is $299 is for a single user or $599 for multiple concurrent users. It is a very simple interface but more powerful than using a spreadsheet, with more search options.
RTG Conflicts has an installed software version ($95 first license, $25 each additional license with a 45 day free trial). RTG Conflicts Online includes RTG Bills Online and works on any browser for $16 per month for a single user. Unlike many subscription services the price per user doesn’t substantially jump, so 2 users is $22 per month, 4 users is $32 per month, etc. There is a 30 day free trial for the online product.
This excellent and recently updated guide on conflicts of interest from Lawyers Mutual includes additional best practices as well as forms and sample letters. They also include suggested search terms by practice area. The good news there is a lot of guidance and systems to help avoid conflicts, just be sure to review your methods and actions regularly to make sure they are still sufficient.
** Special thanks to Laura Calloway, former Director of the Alabama State Bar Practice Management Assistance Program, for her insights and help with this post!