Managing Your Practice
What you need to know about conflict of interest systems
By Beverly Michaelis
good conflicts checking system is essential to avoiding serious malpractice
and ethical problems. No lawyer can remember every person connected with
every case. Eventually a new client will appear with interests opposed
to a present or past client. The conflict will waste much of your effort
if you are ultimately forced to resign from the case, and you may face
malpractice claims and disciplinary proceedings. How can you avoid this
outcome? By establishing and implementing a system to detect conflicts
prior to representation.
TO SETTING UP AN EFFECTIVE CONFLICT SYSTEM
How do I set up a conflict system?
this old-style card system continues to have some appeal because of its
simplicity, it also has major drawbacks. Conflict searches are slow, completing
cards for new client matters is time consuming, cards are often lost or
misfiled and storage of cards as the conflict system grows can be problematic.
Fortunately, a relatively inexpensive solution is available; a simple
database can store the same information and allow for fast and easy updates
How can I computerize my conflict system?
UP YOUR OWN DATABASE
you set up a database for your practice, be sure to include the following
fields in each client record: Date Opened; Matter Name; Matter Number
(if applicable); Client Name; Attorney (initials of the responsible attorney,
if applicable); Description of Matter (a description of the matter detailed
enough to allow the user to determine if a conflict exists without having
to pull the file); Conflict Names (names of all related and adverse parties
and their relationships to the client); Date Closed; Closed File Number;
and Date Destroyed.
you would like to use existing software to set up a conflict checking
system and need help, the practice management advisers of the Professional
Liability Fund can assist you. To take advantage of our free and confidential
service, call (503) 639-6911 or (800) 452-1639.
What names should I be entering in my conflict system?
in your own firm, staff members and close relativesof
lawyers and staff should be listed in the conflict system as well. This
ensures that cases will not be taken against people connected with the
addition to all clients1, enter all prospective
clients and declined clients into the conflict system. Failure to enter
prospective or declined clients in the conflict system can be embarrassing,
costly and may result in ethical or malpractice claims against you. For
example, assume a husband comes in for a consultation because he is contemplating
a divorce. During the consultation, the husband discloses confidential
information. The husband then decides not to proceed with the dissolution
or you decline to represent the husband. Two years later the wife comes
in to your office seeking a divorce. If you accept the wife as a client,
you will have a conflict of interest. This could happen easily if you
forgot about the consultation with the husband and did not maintain a
record of consultations in the conflict system. A similar situation can
occur when two lawyers in the same firm interview prospective clients
who have adverse interests.
When should I run a conflicts check?
What should I do when a name comes up during a conflicts check?
How should our firm screen for conflicts when a new lawyer or staff person
How can we document conflict checks?
client intake and conflict check request forms are available from the
Professional Liability Fund. Call (503) 639-6911 or (800) 452-1639, or
visit the PLF website at www.osbplf.org.
How can we screen for potential conflict names that may not be in our
ABOUT SETTING UP CONFLICT SYSTEMS
ethics assistance on potential conflicts of interest, call Sylvia Stevens
(ext. 359) or George Riemer (ext. 405) at (503) 620-0222 or (800) 452
an individual, be sure to include all known names (i.e., former or maiden
names). When listing lawyers and employees of the firm, consider including
contract attorneys, temporary workers and freelancers. Key vendors or
service providers of the firm may also be included in the conflict system.
Insured; lay witness(es), plaintiff(s); defendant(s), insurer; guardian
ad litem; spouse; expert witness(es).
Estate: Owner/spouse; buyer(s); seller(s); partner(s); officer(s);
shareholder(s); director(s); subsidiaries/affiliates; key employees; property
address; any opposing party in a transaction.
Deceased; personal representative; spouse/children/heirs/devisees;
Planning: Testator; personal representative; spouse/children/heirs/devisees;
Client; spouse; children; grandparents.
Client; co-defendant(s); witness(es); victim(s).
Compensation: Injured worker; insurer; employer.
Client; spouse; creditors.
firm: All lawyers; spouses/parents/siblings/in-laws; employees.
Other: Declined clients and adverse parties, if known; prospective clients; agencies or individuals for whom you provide investigation work, such as Oregon State Bar Professional Responsibility Board. +
ABOUT THE AUTHOR
The author is a lawyer and practice management adviser with the Professional Liability Fund. For free office system consultations and assistance, contact Bev Michaelis, Carol Wilson or Dee Crocker at the numbers above.