BAR COUNSEL A Journey Down the Rabbit Hole iStock Conflicts Analysis A ll lawyers realize that they cannot represent both a plaintiff and a defendant in a pending litigation matter. But often, conflicts questions are confounding. Even seasoned lawyers may feel like crawling under their desks after poring over the conflicts rules. Conflicts analysis can sometimes seem, dare I say, like stepping into an alternate universe. Learning to navigate the conflicts rules before you are faced with an urgent client issue can save you heartburn and sleepless nights. In this bar counsel col- umn, we travel together “down the rabbit hole” with a discussion of the top 10 conflicts questions lawyers ask of general counsel’s office. “If you don’t know where you are going any road can take you there.” —Lewis Carroll, Alice in Wonderland 1. Does my firm have to have a conflict check system? Yes. A client intake system is By Amber Hollister absolutely necessary to avoid running afoul of the conflicts rules. After all, a “see no evil, hear no evil” approach is not a viable defense to a failure to recognize a conflict. See In re Knappenberger, 338 Or 348 (2005) (disciplining lawyer who failed to have a conflict check system and holding a lawyer “may not rely solely on his or her memory to avoid prohibited conflicts”). No lawyer has a perfect memory. But lawyers are deemed to know that a conflict exists if they should have known through the exercise of reasonable care about the facts giving rise to the conflict. RPC 1.0(h). A client intake system allows lawyers to track when a lawyer or a firm has had a consultation with, or formed an attorney- client relationship with, an individual or entity. A good conflict system also includes a description of the matter, as well as information about opposing parties, key players, affected properties and client representatives. Intake information 2. Can a consultation create a conflict? Yes. A lawyer who consults with a prospective client about a matter is prohibited from representing another person with “materially adverse interests” in the same or a substantially related matter if the information received from the prospective client “could be significantly harmful to [the prospective client] in the matter,” unless the rule provides an exception. RPC 1.18(c); see OSB Formal Ethics Op 2005-138. A classic prospective client conflict may arise when you consult with a husband about a dissolution and later wish to represent his wife. Because you are seeking to represent an adverse party in the same matter, you would need to evaluate whether the husband disclosed anything to you in the prior consultation that could be significantly harmful to him in the dissolution. If he did, you would have a prospective client conflict. However, a Even seasoned lawyers may feel like crawling under their desks after poring over the conflicts rules. Conflicts analysis can sometimes seem like stepping into an alternate universe. Here’s a discussion of the top 10 conflicts questions lawyers ask most often. enables lawyers to run conflict checks and determine whether a prospective client conflict, a current client conflict or a former client conflict exists. “I wonder if I’ve been changed in the night. Let me think. Was I the same when I got up this morning?” —Lewis Carroll, Alice in Wonderland prospective client conflict can be resolved through informed consent, or in some cases, through screening the lawyer who consulted with the prospective client. RPC 1.18(d). 1 “Who in the world am I? Ah, that’s the great puzzle.” —Lewis Carroll, Alice in Wonderland AUGUST/SEPTEMBER 2016 • OREGON STATE BAR BULLETIN 9